City of Folly Beach v. State of SC

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

City of Folly Beach; Coastal Conservation League; Save
Folly Beach, Inc.; John Collins; Matt Napier; Paula
Stubblefield; Troy Bode; and Carol Kruer, Appellants,

v.

State of South Carolina; Amy Connelly; Jeffrey H.
Morris; Michael Vandaele; Stephen Rawe; Juan
Enterprises, LLC; Juanita A. Wright; Debbie's Folly,
LLC; and Vernon Keller Staubes, Jr., as personal
representative of the Estate of Vernon Staubes,
Defendants,

Of which State of South Carolina; Jeffrey H. Morris;
Michael Vandaele; Stephen Rawe; Juan Enterprises,
LLC; Juanita A. Wright; and Vernon Keller Staubes, Jr.,
as personal representative of the Estate of Vernon
Staubes, are Respondents.

Appellate Case No. 2020-000937

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2023-UP-284
Heard May 11, 2023 – Filed August 2, 2023

REVERSED AND REMANDED
Amy Elizabeth Armstrong and Leslie S. Lenhardt, both
of S.C. Environmental Law Project, of Pawleys Island;
and Michael Gary Corley, of S.C. Environmental Law
Project, of Greenville, for Appellants.

Mary Duncan Shahid and Robert Bruce Wallace, both of
Maynard Nexsen, of Charleston, for Respondents Jeffrey
H. Morris and Stephen Rawe.

Angelica M. Colwell, of Maynard Nexsen, of Charleston,
for Respondent Stephen Rawe.

Gregory Jacobs English, of Wyche Law Firm, of
Greenville, for Respondent Juanita A Wright.

Rita Bolt Barker, of Wyche Law Firm, of Greenville, for
Respondents Juan Enterprises, LLC, and Juanita A
Wright.

Deputy Attorney General J. Emory Smith, Jr., of
Columbia, for Respondent State of South Carolina.

Kerry W. Koon, of Kerry W. Koon, Attorney at Law, of
Charleston, for Respondent Vernon Keller Staubes, Jr., as
the Personal Representative of the Estate of Vernon
Staubes.

PER CURIAM: The City of Folly Beach; Coastal Conservation League; Save
Folly Beach, Inc.; John Collins; Matt Napier; Paula Stubblefield; Troy Bode; and
Carol Kruer (collectively, Appellants) appeal the Master-in-Equity's dismissal of
their declaratory judgment action in which they sought a determination that the
boundary between public and private property on oceanfront property on Folly
Beach is the high water line as it existed before the latest beach renourishment in
2018 and that the State of South Carolina owns portions or all of certain
super-beachfront lots. Appellants also sought injunction prohibiting development
of these lots.1 On appeal, Appellants argue the master erred in (1) finding they did
not have standing to present their claims to the court; (2) finding they failed to
allege a viable cause of action; and (3) dismissing the case because he found they
failed to name indispensable parties to the case. We reverse and remand.

STANDING

Appellants argue the master erred in finding they lacked standing to bring this
declaratory judgment action. We agree.

"A motion to dismiss for lack of standing challenges the court's subject matter
jurisdiction." S.C. Pub. Int. Found. v. Wilson, 437 S.C. 334, 340, 878 S.E.2d 891,
894 (2022). "Whether subject matter jurisdiction exists is a question of law, which
[the appellate c]ourt is free to decide with no particular deference to the circuit
court." Id. Thus, the appellate court "review[s] the circuit court's findings de
novo." Id. "In its most basic sense, '[s]tanding refers to a party's right to make a
legal claim or seek judicial enforcement of a duty or right.'" Pres. Soc'y of
Charleston v. S.C. Dep't of Health & Env't Control, 430 S.C. 200, 209, 845 S.E.2d
481, 486 (2020) (alteration in original) (quoting S.C. Dep't of Soc. Servs. v.
Boulware, 422 S.C. 1, 7, 809 S.E.2d 223, 226 (2018)). "To have standing, one
must have a personal stake in the subject matter of the lawsuit." Sea Pines Ass'n
for the Prot. of Wildlife, Inc. v. S.C. Dep't of Nat. Res., 345 S.C. 594, 600, 550
S.E.2d 287, 291 (2001). "In other words, one must be a real party in interest." Id.
"A real party in interest is one who has a real, material, or substantial interest in the
subject matter of the action, as opposed to one who has only a nominal or technical
interest in the action." Charleston Cnty. Sch. Dist. v. Charleston Cnty. Election
Comm'n, 336 S.C. 174, 181, 519 S.E.2d 567, 571 (1999) (quoting Anchor Point,
Inc. v. Shoals Sewer Co., 308 S.C. 422, 428, 418 S.E.2d 546, 549 (1992)).

1
Our supreme court recently set forth an excellent history of "the distinct fragility
of Folly Beach's coastline" and the super-beachfront properties that "threaten[] the
existence of the entire beach in that area of the state" by worsening the erosion
rates. Braden's Folly, LLC v. City of Folly Beach, 439 S.C. 171, 179-85, 886
S.E.2d 674, 679-82 (2023). Respondents Jeffrey H. Morris; Michael Vandaele;
Stephen Rawe; Juan Enterprises, LLC; Juanita A. Wright; and Vernon Keller
Staubes, Jr., as personal representative of the Estate of Vernon Staubes
(Respondent Owners) are the owners of currently undeveloped super-beachfront
lots. Appellants John Collins, Matt Napier, Paula Stubblefield, Troy Bode, and
Carol Kruer (Appellant Owners) are the owners of lots landward of Respondent
Owners' super-beachfront lots.
We hold Appellants established they have constitutional standing to bring this
action. See Pres. Soc'y of Charleston, 430 S.C. at 209-10, 845 S.E.2d at 486
("Standing may be acquired (1) by statute, (2) under the principle of 'constitutional
standing,' or (3) via the 'public importance' exception to general standing
requirements."). For constitutional standing, the plaintiff has the burden of
establishing three elements: (1) "the plaintiff must have suffered an 'injury in
fact'—an invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical'"; (2)
"there must be a causal connection between the injury and the conduct complained
of—the injury has to be fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third party
not before the court'"; (3) "it must be 'likely,' as opposed to merely 'speculative,'
that the injury will be 'redressed by a favorable decision.'" Sea Pines Ass'n for the
Prot. of Wildlife, Inc., 345 S.C. at 601, 550 S.E.2d at 291 (alterations in original)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). "The general
rule is that a municipality must allege an infringement of its own proprietary
interests or statutory rights to establish standing." Glaze v. Grooms, 324 S.C. 249,
255, 478 S.E.2d 841, 845 (1996).

"In order for an injury to be particularized, it must affect the plaintiff in a personal
and individual way." Carnival Corp. v. Hist. Ansonborough Neighborhood Ass'n,
407 S.C. 67, 75, 753 S.E.2d 846, 850 (2014). "[C]oncerns reflecting aesthetic or
recreational interests have been recognized as 'judicially cognizable injur[ies] in
fact.'" Town of Arcadia Lakes v. S.C. Dep't of Health and Env't Control, 404 S.C.
515, 531, 745 S.E.2d 385, 394 (Ct. App. 2013) (second alteration in original)
(quoting Sea Pines Ass'n for the Prot. of Wildlife, Inc., 345 S.C. at 602, 550 S.E.2d
at 292)); see, e.g., Smiley v. S.C. Dep't of Health & Env't Control, 374 S.C. 326,
328, 332, 649 S.E.2d 31, 32, 34 (2007) (holding a plaintiff had standing to
challenge a beach sand scraping permit because "[t]he averments in [plaintiff's]
affidavit that he recreates and views nature on the beach on an almost daily basis is
a sufficient allegation of a 'concrete and particularized invasion.'"). Additionally,
"[a]n economic interest is a legally protected interest." Opternative, Inc. v. S.C.
Bd. of Med. Exam'rs, 433 S.C. 405, 414, 859 S.E.2d 263, 268 (Ct. App. 2021) aff'd,
437 S.C. 258, 878 S.E.2d 861 (2022).

First, we hold Appellant Owners have articulated concrete and particularized
injuries that could be addressed by a determination of the ownership of the
super-beachfront lots. See Town of Arcadia Lakes, 404 S.C. at 529, 745 S.E.2d at
392 ("'At the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice' to withstand a motion to dismiss." (quoting Lujan,
504 U.S. at 561)). Appellants alleged in their complaint that the development of
the Respondent Owners' super-beachfront lots would result in irreparable injury to
Appellants by depriving them of their right to access property held in public trust
and would "specifically impair and threaten their property rights." In their
affidavits, Appellants Kruer and Napier related that the residences and seawalls on
the developed super-beachfront lots exacerbated the erosion on the public beach.
As our supreme court noted, the development of the super-beachfront lots "is
threatening the existence of the entire beach in that area of the state." Braden's
Folly, LLC, 439 S.C. at 179, 886 S.E.2d at 679. Kruer and Napier also described
how development of other super-beachfronts lots made it impossible for them to
walk or jog on the beach when the tide was up to the seawalls on the lots. They
asserted that if Respondent Owners' super-beachfront lots were developed, they
would be excluded from those portions of the public trust that they had enjoyed,
including their access to the beach and their ability to use the public beach. They
also asserted the view from their properties would be drastically diminished, which
would lower their properties' values. Napier further stated Respondents Wright
and/or Juan Enterprises erected barricades in the dunes blocking his path to the
beach. Kruer and Napier also contended that the determination of the ownership
status of the super-beachfront lots was "essential to the continued use and
enjoyment" of their properties and to their properties' values. Accordingly, we find
Appellant Owners have set forth injuries to their property, aesthetic, or recreational
interests. See Town of Arcadia Lakes, 404 S.C. at 531, 745 S.E.2d at 394
("[C]oncerns reflecting aesthetic or recreational interests have been recognized as
'judicially cognizable injur[ies] in fact.'" (second alteration in original) (quoting
Sea Pines Ass'n for the Prot. of Wildlife, Inc., 345 S.C. at 602, 550 S.E.2d at 292));
Opternative, Inc., 433 S.C. at 414, 859 S.E.2d at 268 (stating "[a]n economic
interest is a legally protected interest").

We hold the City also articulated particularized injuries that could be addressed by
this action. Spencer Wetmore, the City's administrator, stated the City's interest in
this action was based in part in preventing the "inherently problematic
development" of additional super-beachfront lots. She asserted the development of
Respondent Owners' super-beachfront lots may cause the same problems that have
occurred with the super-beachfront lots already developed, including (1)
aesthetically unappealing, non-conventional designs of houses; (2) damage to
oceanfront sand-dunes, which are necessary for the protection of homes and
infrastructure; and (3) erosion leaving houses stranded on active beach with
exposed septic tanks and damaged foundations, making the houses uninhabitable
and creating a significant management and administrative burden on the City. In
addition, Wetmore claimed the City needed clarification of the property line of the
super-beachfront lots in order to (1) effectively administer its ordinances in
permitting seawalls and revetments of the beachfront; (2) conduct maintenance
projects, such as planting dune vegetation, erecting sand fences, and the minor
moving of sand, which it only can do on public land; and (3) plan, execute, and
allocate costs of future beach renourishment projects. She explained that in order
for the City to receive federal funds for renourishment, the City was required to (1)
only use those funds for renourishment of public property, and (2) ensure the
renourishment of adjoining private property at the expense of the City and private
property owners. 2 In Braden's Folly, our supreme court related that "absent the
ongoing beach renourishment projects, the erosion in Folly Beach would have
swept away not only the entirety of the [super-beachfront] lots by now, but also the
entirety of the A lots on East Ashley Avenue[3] as well." 439 S.C. at 198-99, 886
S.E.2d at 689. The court explained, "If federal funding is lost due to super-
beachfront development, and Folly Beach is unable to secure enough local funds to
itself pay for the renourishment projects, all of the houses on the northeast end of
Folly Beach . . . will be underwater in the next two to three decades." Id. at 199,
886 S.E.2d at 689. In the present matter, we hold the City articulated
particularized injuries to its aesthetic, economic, and property interests that could
be redressed by a favorable decision in this action. See Town of Arcadia Lakes,
404 S.C. at 531, 745 S.E.2d at 394 ("[C]oncerns reflecting aesthetic or recreational
interests have been recognized as 'judicially cognizable injur[ies] in fact.'" (second
alteration in original) (quoting Sea Pines Ass'n for the Prot. of Wildlife, Inc., 345
S.C. at 602, 550 S.E.2d at 292)); Opternative, Inc., 433 S.C. at 414, 859 S.E.2d at
268 (stating "[a]n economic interest is a legally protected interest").

We also disagree with the master's finding that Appellants lacked standing because
their alleged injuries are conjectural and hypothetical. Appellants were not
required to wait until Respondent Owners began construction on their
super-beachfront lots in order for Appellants' alleged injury to be "actual or
imminent, not 'conjectural' or 'hypothetical.'" See Sea Pines Ass'n for the Prot. of
Wildlife, Inc., 345 S.C. at 601, 550 S.E.2d at 291 (stating "the plaintiff must have
suffered an 'injury in fact'—an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not 'conjectural' or
'hypothetical'" (quoting Lujan, 504 U.S. at 560)); see also Smiley, 374 S.C. at

2
Wetmore explained that the Army Corps of Engineers requires the adjoining
private property to be built up to the same height as the public renourishment, in
order to protect the structural integrity of the renourishment project.
3
The lots landward of the super-beachfront lots.
330-31, 649 S.E.2d at 33-34 (holding plaintiff had standing to challenge a permit
for beach sand scraping when the permit had been issued but the scraping had not
started and explaining that "denying standing to an individual unless and until the
'injury' has been inflicted ignores the 'actual or imminent' requirement").

Accordingly, we find Appellants Owners and the City have established an injury in
fact, which is causally connected to Respondent Owners' assertions of ownership
of the super-beachfront lots, and likely to be addressed by a favorable decision in
this action. See Sea Pines Ass'n for the Prot. of Wildlife, Inc., 345 S.C. at 601, 550
S.E.2d at 291 (stating that for constitutional standing, the plaintiff has the burden
of establishing three elements: (1) "the plaintiff must have suffered an 'injury in
fact'—an invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical'"; (2)
"there must be a causal connection between the injury and the conduct complained
of—the injury has to be fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third party
not before the court'"; (3) "it must be 'likely,' as opposed to merely 'speculative,'
that the injury will be 'redressed by a favorable decision.'" (alterations in original)
(quoting Lujan, 504 U.S. at 560-61)). Accordingly, we hold the master erred in
finding they did not have standing to bring this action. Furthermore, we hold that
because Napier has standing to bring this action and is a member of the Coastal
Conservation League and Save Folly Beach, these organizations have established
associational standing. See Pres. Soc'y of Charleston, 430 S.C. at 211, 845 S.E.2d
at 487 (holding "an organization has associational standing to bring suit on behalf
of its members when (1) at least one member would otherwise have standing
(statutory, constitutional, or otherwise) to sue in his or her own right, (2) the
interests at stake are germane to the organization's purpose, and (3) neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit"). 4

4
We also hold the master erred in finding Appellants abandoned their claim
against the State by stating they were "apathetic about whether or not the [S]tate
continues as a party in this case"; Appellants merely distinguished their
particularized injuries from the generalized grievances suffered by the public as a
whole. See Carnival Corp., 407 S.C. at 75, 753 S.E.2d at 850 ("In order for an
injury to be particularized, it must affect the plaintiff in a personal and individual
way."); id. ("'[A] plaintiff raising only a generally available grievance about
government—claiming only harm to his and every citizen's interest in proper
application of the Constitution and laws, and seeking relief that no more directly
OWNERSHIP OF SUPER-BEACHFRONT LOTS

Appellants argue the master erred in dismissing their action for failure to state a
claim. They assert they made sufficient allegations in their complaint to support a
claim that portions of the super-beachfront lots are now public trust property. We
agree.

"Under the public trust doctrine, the State holds presumptive title to tidal land
below the high water mark to be held in trust for the benefit of all people of South
Carolina." Estate of Tenney v. S.C. Dep't of Health & Env't Control, 393 S.C. 100,
106, 712 S.E.2d 395, 398 (2011). "The State has the exclusive right to control land
below the high water mark for the public benefit and cannot permit activity that
substantially impairs the public interest in marine life, water quality, or public
access." McQueen v. S.C. Coastal Council, 354 S.C. 142, 149, 580 S.E.2d 116,
119-20 (2003) (citation omitted). "Coastal lands are notoriously subject to the
volatility of changing tides, erosion, and accretion." Estate of Tenney, 393 S.C. at
108, 712 S.E.2d at 399. "[A] person who possesses title to land especially
vulnerable to this volatility takes title with the knowledge their land is at risk of
loss to the State by natural forces." Id. "[U]nder South Carolina law, wetlands
created by the encroachment of navigable tidal water belong to the State."
McQueen, 354 S.C. at 150, 580 S.E.2d at 120. "Proof that land was highland at the
time of grant and tidelands were subsequently created by the rising of tidal water
cannot defeat the State's presumptive title to tidelands." Id. "South Carolina
recognizes the general common law rule that accretions by natural alluvial action
to riparian or littoral lands become the property of the riparian or littoral owner
whose lands are added to." Horry County v. Woodward, 282 S.C. 366, 369, 318
S.E.2d 584, 586 (Ct. App. 1984). "Conversely, lands gradually encroached upon
by water cease to belong to the former riparian or littoral owner." Id. at 370, 318
S.E.2d at 586. "The law gives the riparian proprietor the benefit of additions to his
land caused by accretion or reliction." Id. "However, it also requires him to bear
the corresponding risk that land will be lost by gradual erosion or submergence."
Id. "The rule is said to rest on the principle of natural justice that one who sustains
the burden of losses imposed by the contiguity of waters shall be entitled also to
whatever benefits they bring." Id. "Avulsion, by contrast, as derived from English
common law, is the sudden and perceptible change in land and is said not to divest

and tangibly benefits him than it does the public at large—does not' possess
standing." (alteration in original) (quoting Lujan, 504 U.S. at 573-74)).
an owner of title." Braden's Folly, LLC, 439 S.C. at 185 n.13, 886 S.E.2d at 682
n.13 (quoting Severance v. Patterson, 370 S.W.3d 705, 722 (Tex. 2012)); see also
Georgia v. South Carolina, 497 U.S. 376, 404 (1990) ("[A]vulsive action
ordinarily calls to mind something somewhat sudden or, at least, of short
duration . . . .").

Appellants alleged that prior to the 2018 renourishment, the super-beachfront lots
were entirely or almost entirely submerged below the mean high water line. They
further alleged the 2018 renourishment was a "sudden, perceptible, and artificial
addition of sand, which constituted an avulsion," which did not restore Respondent
Owners' rights to the property that had been below the mean high water line before
the renourishment. Viewing the facts and inferences reasonably deducible
therefrom in the light most favorable to Appellants, we hold they have sufficiently
alleged facts that could support a claim that the portions of the super-beachfront
lots below the mean high water line before 2018 renourishment are now public
trust property. See Doe v. Bishop of Charleston, 407 S.C. 128, 134, 754 S.E.2d
494, 497 (2014) ("When reviewing the dismissal of an action pursuant to Rule
12(b)(6), SCRCP, the appellate court applies the same standard of review as the
trial court."); id. ("If the facts alleged and inferences reasonably deducible from the
allegations set forth in the complaint, viewed in the light most favorable to the
plaintiff, entitle him to relief on any theory, dismissal under Rule 12(b)(6) is
improper."); id. ("The complaint should not be dismissed merely because the court
doubts the plaintiff will prevail in the action."); id. at 134, 754 S.E.2d at 497-98
("When reviewing a motion to dismiss for failure to state facts sufficient to
constitute a cause of action, the pleadings must be construed liberally, and all well
pled facts must be presumed true." (footnote omitted)).

Furthermore, we find the master erred in considering matters beyond the face of
the complaint, including that the Respondent Owners paid for renourishment of
their lots with their private funds, that the stated intent of the renourishment project
was the mitigation of damages to both public and private lands along the coast
caused by federal navigation projects, and that the manmade erosion caused by the
construction of the Charleston Harbor jetties was the avulsive event. See id. at
134, 754 S.E.2d at 497 (stating a "complaint should not be dismissed merely
because the court doubts the plaintiff will prevail in the action"); Brown v.
Leverette, 291 S.C. 364, 367, 353 S.E.2d 697, 699 (1987) (reversing a trial court's
granting of a Rule 12(b)(6) motion because the trial court considered supporting
affidavits and ruled on "defenses . . . not apparent from the face of the complaint").
We hold the issue in the present case, whether portions of the super-beachfront lots
are public trust property, is a novel issue that would benefit from further
development of the facts, better portraying the legal issue. See Evans v. State, 344
S.C. 60, 68, 543 S.E.2d 547, 551 (2001) ("As a general rule, important questions of
novel impression should not be decided on a Rule 12(b)(6), SCRCP, motion to
dismiss."). Accordingly, we hold the master erred in dismissing Appellants'
complaint pursuant to Rule 12(b)(6), SCRCP.

INDISPENSABLE PARTIES

Appellants argue the master erred in dismissing their action for failure to name
indispensable parties. We agree.

If the master believed all owners of other super-beachfront lots were indispensable
parties, the remedy was to make them parties to this action rather than dismissing
the action. See Charleston Cnty. Parents for Pub. Schs., Inc. v. Moseley, 343 S.C.
509, 514, 541 S.E.2d 533, 535 (2001) ("[T]he remedy under Rule 19, SCRCP[,] is
for the Court to make the [indispensable party] a party, not to dismiss the action.").
Thus, the master erred in imposing an overly harsh remedy.

ALTERNATE SUSTAINING GROUNDS AND REMAINING ISSUES

We decline to address Respondents' additional sustaining ground. See I'On, L.L.C.
v. Town of Mount Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) ("It is
within the appellate court's discretion whether to address any additional sustaining
grounds."). We also decline to address Appellants' remaining arguments. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (holding an appellate court need not address remaining issues on
appeal when its determination of a prior issue is dispositive).

REVERSED AND REMANDED.

GEATHERS, VINSON, and VERDIN, JJ., concur.