Sea Cabins on the Ocean IV Homeowners Ass'n v. City of North Myrtle Beach

523 S.E.2d 193, 337 S.C. 380, 1999 S.C. App. LEXIS 144
CourtCourt of Appeals of South Carolina
DecidedOctober 4, 1999
DocketNo. 3050
StatusPublished
Cited by13 cases

This text of 523 S.E.2d 193 (Sea Cabins on the Ocean IV Homeowners Ass'n v. City of North Myrtle Beach) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sea Cabins on the Ocean IV Homeowners Ass'n v. City of North Myrtle Beach, 523 S.E.2d 193, 337 S.C. 380, 1999 S.C. App. LEXIS 144 (S.C. Ct. App. 1999).

Opinion

ANDERSON, Judge:

This is a takings and inverse condemnation case. Sea Cabins on the Ocean IV Homeowners’ Association, Inc. and numerous owners of units in the homeowners’ association (Sea Cabins) filed this action against the City of North Myrtle Beach alleging a taking and condemnation of their private pier. The Master-in-Equity found a taking had occurred and awarded Sea Cabins $900,000.00 in compensation. The City appeals. We reverse.

FACTSIPROCEDURAL BACKGROUND

Sea Cabins was created by master deed in 1980 pursuant to the South Carolina Horizontal Property Regime Act, S.C.Code Ann. § 27-31-10, et seq. (1976). One of the common elements of Sea Cabins was a fishing pier that extended approximately 900 feet into the ocean. The pier was built with authorization under Act 499, 1955 S.C. Acts 1083-1084. On September 21, 1989, Hurricane Hugo damaged a significant amount of the pier.

In a letter dated February 20, 1990, the City informed Sea Cabins it was considering the adoption of an ordinance to declare the remaining portion of the pier a nuisance. The resolution, adopted on March 6,1990, stated the pier would be removed if it was not repaired. Several extensions were requested and granted for the repair of the pier.

On April 9, 1990, the City passed the Beach Franchise Ordinance, which required a license agreement be entered into with the City as a condition for obtaining a building permit. The agreement being negotiated between Sea Cabins and the City required the pier be open to the public. On June 28, 1990, Sea Cabins instituted an action in the United States District Court against the City. The action sought declaratory and injunctive relief and damages under 42 U.S.C. § 1983 and the United States and South Carolina Constitutions.

On July 22, 1992, United States District Judge C. Weston Houck ruled the Beach Franchise Ordinance was invalid as it applied to Sea Cabins. Other federal theories were tried on [387]*387May 17 and 18, 1993. Judge Henry Coke Morgan entered an order on July 29,1993, finding Sea Cabins had property rights in the pier, and acknowledging the invalidity of the Beach Franchise Ordinance. The Court held the remaining issues in abeyance until all state remedies have been exhausted.

On August 16, 1990, subsequent to the filing of the federal action, the City returned the plans and permit application to Sea Cabins, after the Zoning Administrator found the pier had been destroyed, not just damaged. The Zoning Board, the Circuit Court, and the South Carolina Court of Appeals affirmed the Zoning Administrator’s ruling. This Court granted Sea Cabins’ petition for rehearing, withdrew the original opinion, and filed a'new opinion holding there was no evidence supporting the Zoning Board’s finding the pier was more than 75% damaged or destroyed. The South Carolina Supreme Court denied the Zoning Board’s petition for writ of certiorari on December 20,1993.

This action was commenced on August 12, 1993. Sea Cabins averred the ordinances and actions of the City and its officials resulted in a taking of the pier. Sea Cabins sought compensation based upon inverse condemnation of their property. The City answered raising multiple defenses.

The City issued Sea Cabins a permit on April 19, 1994. After several revisions, construction and repair of the pier commenced on October 10, 1994. The pier was completed in June of 1995.

At trial, the Master-in-Equity awarded judgment of $900,-000.00 to Sea Cabins. The City filed a motion to alter or amend pursuant to Rules 52(b) and 59(e), SCRCP. After a hearing, the Master issued an additional order on February 24, .1997, partially amending his original order. The City appeals.

ISSUES 1

Is a temporary taking compensable for inverse condemnation where the property owners have not been deprived of “all economically viable use” of their property?

[388]*388 STANDARD OF REVIEW

An action brought by a property owner against a municipality for the taking of the owner’s property without just compensation is an action at law. South Carolina Public Service Authority v. Arnold, 287 S.C. 584, 340 S.E.2d 535 (1986); Poole v. Combined Utility Sys., 269 S.C. 271, 237 S.E.2d 82 (1977). Since this action was referred to the Master-in-Equity for final judgment with direct appeal to the Supreme Court, this Court will correct any error of law. We must affirm the Master’s factual findings unless there is no evidence reasonably supporting them. Crary v. Djebelli, 329 S.C. 385, 496 S.E.2d 21 (1998); King v. PYA/Monarch, Inc., 317 S.C. 385, 453 S.E.2d 885 (1995). Townes Assoc. Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

LAW/ANALYSIS

The City argues Sea Cabins’ claims of inverse condemnation must fail as a matter of law because the ordinances and actions only took the pier and not all uses of the property. Further, the City maintains since it was only a temporary taking, “all economically viable use” must be taken before it becomes compensable. We agree.

I. Recognition of a Cause of Action for a Temporary Taking

The United States Supreme Court first recognized that a temporary taking effectuated by regulation could be compensable in the case of First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). According to the Court, “temporary takings which ... deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation.” Id. at 318, 107 S.Ct. 2378. The Court referred to Justice Brennan’s dissenting opinion in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 657, 101 S.Ct. 1287, 1307, 67 L.Ed.2d 551 (1981): “Nothing in the Just Compensation Clause suggests that ‘takings’ must be permanent and irrevocable.” The Court further noted: “Invalidation of the ordinance ..., though converting the taking into a ‘temporary’ one, is not a [389]*389sufficient remedy to meet the demands of the Just Compensation Clause.” First English Evangelical Lutheran Church, 482 U.S. at 819, 107 S.Ct. 2878.

The United States Supreme Court elucidated with clarity the doctrine of temporary takings in the case of Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). The 1988 Act that constituted a taking in the Lucas case was amended prior to the decision of the South Carolina Supreme Court.

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Bluebook (online)
523 S.E.2d 193, 337 S.C. 380, 1999 S.C. App. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sea-cabins-on-the-ocean-iv-homeowners-assn-v-city-of-north-myrtle-beach-scctapp-1999.