Denied a rehearing by the Court of Appeals, the town of Pawleys Island and three oceanfront property owners challenging the town’s condemation efforts have asked the state Supreme Court to correct what they say are errors in the appellate court’s opinion on easements for beach renourishment.
The town says it needs the easements from the three owners to allow the Army Corps of Engineers to replace sand on the island’s south end that was lost to Hurricane Ian in 2022. The easements will also allow the Corps to fund future renourishment on the south end beach.
Neither side was happy with the opinion that the three-judge panel Appeals Court issued in June doubling the amount of attorneys fees awarded to the property owners who successfully challenged the town’s efforts to condemn the easements in 2021.
The opinion was critical of the town, saying it “engaged in troubling conduct by seeking unreasonable easements.”
It found that a Circuit Court judge erred in reducing the fee request by the property owners from $175,895 for 950 hours of work to $8,913 for 125 hours of work. The Appeals Court said 250 hours were warranted because “the Town’s behavior may have led to counsel devoting more time to these cases.”
One of the property owners, Barry Stanton, is representing the other two owners, and is not seeking fees for representing himself.
He wants the Supreme Court to grant the fee request or send the matter back to the Circuit Court with instructions on how to determine the fees, including those for appealing the original order.
The town agrees that the Appeals Court erred in its fee award by simply doubling the amount of hours without any justification.
But the primary focus of the town’s request to the Supreme Court is to correct the Appeals Court’s statements that the easements are unnecessary.
“There is absolutely nothing in the record to support the assertion that the Corps did not require the easements,” according to the petition by Will Dillard, who represents the town. “The Corps most certainly does require that these particular easements be obtained.”
The Corps plans to place up to 200,000 cubic yards of offshore sand on the island’s south end, a $14 million project that Corps officials say requires the easements from all 113 property owners in the project area.
The town has commissioned appraisals of the easement areas, a first step toward condemnation.
“Landowners will inevitably attempt to use the mistaken language in the opinion of the Court of Appeals to further object to the Town’s future efforts to take necessary steps to secure this federal funding to protect the Pawleys Island shoreline for the public,” Dillard said in his petition. “Unfortunately, it is highly probable that there will be additional litigation.”
The property owners said in their petition to the high court that the Appeals Court opinion failed to understand the nature of the case, including the likelihood of another condemnation effort.
While the appellate judges called the easements “overly broad,” Stanton said in his petition to the Supreme Court that “the easements were objectionable in appropriating any public access at all” on private property.
He called that “the central evil in the case.”
“What the town sought to impose and appropriate was no different from imposing 50-foot to 70-foot wide perpetual easements for the general public to frolick, day-camp, dig holes, engage in other recreation, or use for any other purpose, the front yards of all five justices of this Court,” Stanton said. “The issue of public access is not a matter of degree.”
The Appeals Court “made many of the same unaddressed errors as the circuit court, but merely doubled the fee award,” he said. “This is unpublished fiat, not an analysis, and is not fair.”
The Appeals Court opinion was “unpublished,” meaning it only applied to the case at hand. Stanton’s petition to the Supreme Court states that the Appeals Court is not allowed to issue unpublished opinions under state law and the court’s rules.
“South Carolina’s judicial tradition of published, written appellate decisions, followed for all people as legal precedents, was in the vanguard of governmental transparency and responsibleness,” he said.
Even though an unpublished opinion, “in the context of this ongoing dispute it is of significant public importance that this Court correct the inaccurate, unsupported language of the Court of Appeals,” Dillard said in his petition.
The Corps of Engineers requirement is “the central factual premise underlying all of this litigation,” he said. “In plain terms, the Town would have absolutely no reason to go to all this trouble if the Corps did not specifically require it.”