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Bluestein v. Town of Sullivan's Island

Court of Appeals of South Carolina

August 1, 2018

Nathan Bluestein, Ettaleah Bluestein, M.D., Theodore Albenesius and Karen Albenesius, Appellants,
v.
Town of Sullivan's Island and Sullivan's Island Town Council, Respondents. Appellate Case No. 2015-002550

          Heard April 10, 2018

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

          Robert Holmes Hood, Jr and James Bernard Hood, both of Hood Law Firm, LLC, of Charleston; A. Walker Barnes, of Hood Law Firm, LLC, of Spartanburg; and Deborah Harrison Sheffield, of Columbia, for Appellants.

          J. Brady Hair, of Law Office of J. Brady Hair, N. Charleston, for Respondents.

          LOCKEMY, C.J.

         In this appeal from the Charleston County Master-in-Equity, Appellants assert the master erred in granting the Town of Sullivan's Island's (Town's) motion for summary judgment on numerous claims regarding the Town's decision not to cut a maritime forest on the island. We affirm.

         FACTS

         Appellants in this case own front row property on Sullivan's Island. However, Appellants do not own the property closest to the beach-rather, the Town owns those lots, which continue to grow each year, through a process known as sediment transport. See Josh Eagle, Coastal Law 6 (2011). Professor Eagle explains, "sand grains do not magically vanish from or appear on a beach; rather they are going to, or coming from somewhere else along the coast." Id. While most land use cases along our coast involve erosion, or the loss of beachfront sediment, this case involves accretion, or the addition of sediment to the beach front.

         The question here is whether the Town must maintain the land exactly as it was in 1991, including cutting any vegetation to a height of three feet, as Appellants assert. The land owned by the Town is subject to certain restrictions resulting from a deed conveying the land to the Town from the Low Country Open Land Trust (the Trust). In order to protect the Town's ocean adjacent property from development, the Town's council enacted an ordinance on January 15, 1991, which authorized the Town to convey the land between the ocean and the front row properties to the Trust. The Trust subsequently conveyed the land back to the Town on February 12, 1991.

         The conveyance from the Trust included the deed restrictions at issue here. The deed explained the purposes behind the conveyance.

Whereas the Lowcountry Open Land Trust (the "Grantor") is a nonprofit corporation whose purpose is to preserve and conserve natural areas; and
WHEREAS, the Grantor is the owner in fee simple of certain real property (hereinafter referred to as the "Property") which has aesthetic, scientific, educational, and ecological value in its present state as a natural area which has not been subject to development or exploitation, which property is described more on the attached Exhibit A;
WHEREAS, the parties desire to place restrictions upon the Property for the purposes of, inter alia, retaining land or water areas predominantly in their natural, scenic, open or wooded condition or as suitable habitat for fish, plants, or wildlife; and
WHEREAS, "natural, scientific, educational, aesthetic, scenic and recreational resource," as used herein shall, without limiting the generality of the terms, mean the condition of the Property at the time of this grant, evidenced by:
A) The appropriate survey maps from the United States Geological survey, showing the property line and other contiguous or nearby protected areas;
B) An aerial photograph of the Property at an appropriate scale taken as close as possible ...

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