S*391 Session 108 (1989-1990)
S*0391(Rat #0748, Act #0607 of 1990) General Bill, By J.M. Waddell, Leatherman,
W.R. Lee, J.C. Lindsay and I.E. Lourie
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Sections
48-39-250 and 48-39-260 so as to provide for the findings and policy relating
to the beach/dune system; to amend Section 48-39-130, as amended, relating to
Coastal Council permits to utilize a critical area, so as to revise the
provisions detailing when a permit is not necessary; to amend Sections
48-39-270 through 48-39-360, relating to the Beach Management Act, so as to
add Sections 48-39-305 and 48-39-355, revise definitions, the provisions for
and the determination of the baseline and the setback line, the duties of the
Coastal Council, the requirements relating to construction, reconstruction,
habitable structures, erosion control structures or devices, pools, and
building permits, and the exemptions, provide for a petition to the circuit
court by landowners and the court's determination, provide for the planting of
vegetation, revise the requirements for the Beach Management Plan and of a
disclosure statement in a contract of sale or transfer of real property, and
provide for the circumstances under which a permit is not required and for
documentation; to repeal Sections 1 and 2 of Act 634 of 1988 relating to
findings and policy relating to the beach/dune system; to provide for the
placement of sand on beaches; to amend Section 48-39-40, relating to the
members of the Coastal Council, so as to provide for their election instead of
appointment and delete the provisions for initial appointments; to provide for
the service of the current nonlegislative members of the Council; and to
provide for application of the Act on legal actions.-amended title
02/16/89 Senate Introduced and read first time SJ-5
02/16/89 Senate Referred to Committee on Agriculture and Natural
Resources SJ-6
04/25/89 Senate Committee report: Favorable with amendment
Agriculture and Natural Resources SJ-14
05/04/89 Senate Special order SJ-86
05/23/89 Senate Debate adjourned SJ-73
05/30/89 Senate Read second time SJ-129
05/30/89 Senate Ordered to third reading with notice of
amendments SJ-129
05/30/89 Senate Retaining place on adj deb. calendar SJ-129
05/31/89 Senate Amended SJ-80
05/31/89 Senate Read third time and sent to House SJ-106
06/01/89 House Introduced and read first time HJ-24
06/01/89 House Referred to Committee on Agriculture and Natural
Resources HJ-25
04/04/90 House Committee report: Favorable with amendment
Agriculture and Natural Resources HJ-32
04/05/90 House Committed to Committee on Ways and Means HJ-68
04/26/90 House Committee report: Favorable with amendment Ways
and Means HJ-13
05/03/90 House Objection by Rep. Corbett HJ-27
05/03/90 House Amended HJ-28
05/03/90 House Read second time HJ-80
05/08/90 House Read third time and returned to Senate with
amendments HJ-18
05/30/90 Senate House amendment amended SJ-39
05/31/90 Senate House amendment amended SJ-35
05/31/90 Senate Returned to House with amendments SJ-48
06/05/90 House Non-concurrence in Senate amendment HJ-36
06/06/90 Senate Senate insists upon amendment and conference
committee appointed Sens. Hayes, McConnell, Long SJ-10
06/06/90 House Conference committee appointed Reps. Sturkie,
Bennett & Barber HJ-43
06/19/90 House Free conference powers granted HJ-64
06/19/90 House Free conference committee appointed Sturkie,
Bennett & Barber HJ-66
06/19/90 House Free conference report received and adopted HJ-66
06/19/90 Senate Free conference powers granted SJ-51
06/19/90 Senate Free conference committee appointed Sens.
McConnell, Hayes, Long SJ-51
06/19/90 Senate Free conference report received and adopted SJ-51
06/19/90 House Ordered enrolled for ratification HJ-105
06/19/90 Ratified R 748
06/25/90 Signed By Governor
06/25/90 Effective date 06/25/90
06/25/90 Act No. 607
07/31/90 Copies available
(A607, R748, S391)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
SECTIONS 48-39-250 AND 48-39-260 SO AS TO PROVIDE FOR THE FINDINGS AND
POLICY RELATING TO THE BEACH/DUNE SYSTEM; TO AMEND SECTION 48-39-130,
AS AMENDED, RELATING TO COASTAL COUNCIL PERMITS TO UTILIZE A CRITICAL
AREA, SO AS TO REVISE THE PROVISIONS DETAILING WHEN A PERMIT IS NOT
NECESSARY; TO AMEND SECTIONS 48-39-270 THROUGH 48-39-360, RELATING TO
THE BEACH MANAGEMENT ACT, SO AS TO ADD SECTIONS 48-39-305 AND
48-39-355, REVISE DEFINITIONS, THE PROVISIONS FOR AND THE
DETERMINATION OF THE BASELINE AND THE SETBACK LINE, THE DUTIES OF THE
COASTAL COUNCIL, THE REQUIREMENTS RELATING TO CONSTRUCTION,
RECONSTRUCTION, HABITABLE STRUCTURES, EROSION CONTROL STRUCTURES OR
DEVICES, POOLS, AND BUILDING PERMITS, AND THE EXEMPTIONS, PROVIDE FOR
A PETITION TO THE CIRCUIT COURT BY LANDOWNERS AND THE COURT'S
DETERMINATION, PROVIDE FOR THE PLANTING OF VEGETATION, REVISE THE
REQUIREMENTS FOR THE BEACH MANAGEMENT PLAN AND OF A DISCLOSURE
STATEMENT IN A CONTRACT OF SALE OR TRANSFER OF REAL PROPERTY, AND
PROVIDE FOR THE CIRCUMSTANCES UNDER WHICH A PERMIT IS NOT REQUIRED AND
FOR DOCUMENTATION; TO REPEAL SECTIONS 1 AND 2 OF ACT 634 OF 1988
RELATING TO FINDINGS AND POLICY RELATING TO THE BEACH/DUNE SYSTEM; TO
PROVIDE FOR THE PLACEMENT OF SAND ON BEACHES; TO AMEND SECTION
48-39-40, RELATING TO THE MEMBERS OF THE COASTAL COUNCIL, SO AS TO
PROVIDE FOR THEIR ELECTION INSTEAD OF APPOINTMENT AND DELETE THE
PROVISIONS FOR INITIAL APPOINTMENTS; TO PROVIDE FOR THE SERVICE OF THE
CURRENT NONLEGISLATIVE MEMBERS OF THE COUNCIL; AND TO PROVIDE FOR
APPLICATION OF THE ACT ON LEGAL ACTIONS.
Be it enacted by the General Assembly of the State of South Carolina:
Beach/dune system findings
SECTION 1. The 1976 Code is amended by adding:
"Section 48-39-250. The General Assembly finds that:
(1) The beach/dune system along the coast of South Carolina is
extremely important to the people of this State and serves the
following functions:
(a) protects life and property by serving as a storm
barrier which dissipates wave energy and contributes to shoreline
stability in an economical and effective manner;
(b) provides the basis for a tourism industry that
generates approximately two-thirds of South Carolina's annual tourism
industry revenue which constitutes a significant portion of the
state's economy. The tourists who come to the South Carolina coast to
enjoy the ocean and dry sand beach contribute significantly to state
and local tax revenues;
(c) provides habitat for numerous species of plants and
animals, several of which are threatened or endangered. Waters
adjacent to the beach/dune system also provide habitat for many other
marine species;
(d) provides a natural healthy environment for the
citizens of South Carolina to spend leisure time which serves their
physical and mental well-being.
(2) Beach/dune system vegetation is unique and extremely
important to the vitality and preservation of the system.
(3) Many miles of South Carolina's beaches have been identified
as critically eroding.
(4) Chapter 39 of Title 48, Coastal Tidelands and Wetlands,
prior to 1988, did not provide adequate jurisdiction to the South
Carolina Coastal Council to enable it to effectively protect the
integrity of the beach/dune system.
Consequently, without adequate controls, development unwisely has
been sited too close to the system. This type of development has
jeopardized the stability of the beach/dune system, accelerated
erosion, and endangered adjacent property. It is in both the public
and private interests to protect the system from this unwise
development.
(5) The use of armoring in the form of hard erosion control
devices such as seawalls, bulkheads, and rip-rap to protect
erosion-threatened structures adjacent to the beach has not proven
effective. These armoring devices have given a false sense of
security to beachfront property owners. In reality, these hard
structures, in many instances, have increased the vulnerability of
beachfront property to damage from wind and waves while contributing
to the deterioration and loss of the dry sand beach which is so
important to the tourism industry.
(6) Erosion is a natural process which becomes a significant
problem for man only when structures are erected in close proximity to
the beach/dune system. It is in both the public and private interests
to afford the beach/dune system space to accrete and erode in its
natural cycle. This space can be provided only by discouraging new
construction in close proximity to the beach/dune system and
encouraging those who have erected structures too close to the system
to retreat from it.
(7) Inlet and harbor management practices, including the
construction of jetties which have not been designed to accommodate
the longshore transport of sand, may deprive downdrift beach/dune
systems of their natural sand supply. Dredging practices which
include disposal of beach quality sand at sea also may deprive the
beach/dune system of much-needed sand.
(8) It is in the state's best interest to protect and to promote
increased public access to South Carolina's beaches for out-of-state
tourists and South Carolina residents alike.
(9) Present funding for the protection, management, and
enhancement of the beach/dune system is inadequate.
(10) There is no coordinated state policy for post-storm
emergency management of the beach/dune system.
(11) A long-range comprehensive beach management plan is needed
for the entire coast of South Carolina to protect and manage
effectively the beach/dune system, thus preventing unwise development
and minimizing man's adverse impact on the system.
Section 48-39-260. In recognition of its stewardship
responsibilities, the policy of South Carolina is to:
(1) protect, preserve, restore, and enhance the beach/dune
system, the highest and best uses of which are declared to provide:
(a) protection of life and property by acting as a buffer
from high tides, storm surge, hurricanes, and normal erosion;
(b) a source for the preservation of dry sand beaches
which provide recreation and a major source of state and local
business revenue;
(c) an environment which harbors natural beauty and
enhances the well-being of the citizens of this State and its
visitors;
(d) natural habitat for indigenous flora and fauna
including endangered species;
(2) create a comprehensive, long-range beach management plan and
require local comprehensive beach management plans for the protection,
preservation, restoration, and enhancement of the beach/dune system.
These plans must promote wise use of the state's beachfront to include
a gradual retreat from the system over a forty-year period;
(3) severely restrict the use of hard erosion control devices to
armor the beach/dune system and to encourage the replacement of hard
erosion control devices with soft technologies as approved by the
South Carolina Coastal Council which will provide for the protection
of the shoreline without long-term adverse effects;
(4) encourage the use of erosion-inhibiting techniques which do
not adversely impact the long-term well-being of the beach/dune
system;
(5) promote carefully planned nourishment as a means of beach
preservation and restoration where economically feasible;
(6) preserve existing public access and promote the enhancement
of public access to assure full enjoyment of the beach by all our
citizens including the handicapped and encourage the purchase of lands
adjacent to the Atlantic Ocean to enhance public access;
(7) involve local governments in long-range comprehensive
planning and management of the beach/dune system in which they have a
vested interest;
(8) establish procedures and guidelines for the emergency
management of the beach/dune system following a significant storm
event."
Beach/dune system policy
SECTION 2. Section 48-39-130(D)(1) and (6) of the 1976 Code, as
last amended by Act 634 of 1988, are further amended to read:
"(1) The accomplishment of emergency orders of an appointed
official of a county or municipality or of the State, acting to
protect the public health and safety, upon notification to the
council. However, with regard to the beach/dune critical area, only
the use of sandbags, sandscraping, or renourishment, or a combination
of them, in accordance with guidelines provided by the council is
allowed pursuant to this item.
(6) Emergency repairs to an existing bank, dike, fishing pier,
or structure, other than oceanfront erosion control structures or
devices, which has been erected in accordance with federal and state
laws or provided for by general law or acts passed by the General
Assembly, if notice is given in writing to the council within
seventy-two hours from the onset of the needed repairs."
Coastal Council permits to utilize a critical area
SECTION 3. Sections 48-39-270 through 48-39-360, as added by Act
634 of 1988, are amended to read:
"Section 48-39-270. As used in this chapter:
(1) Erosion control structures or devices include:
(a) seawall: a special type of retaining wall that is
designed specifically to withstand normal wave forces;
(b) bulkhead: a retaining wall designed to retain fill
material but not to withstand wave forces on an exposed shoreline;
(c) revetment: a sloping structure built along an
escarpment or in front of a bulkhead to protect the shoreline or
bulkhead from erosion.
(2) Habitable structure means a structure suitable for human
habitation including, but not limited to, single or multifamily
residences, hotels, condominium buildings, and buildings for
commercial purposes. Each building of a condominium regime is
considered a separate habitable structure but, if a building is
divided into apartments, then the entire building, not the individual
apartment, is considered a single habitable structure. Additionally,
a habitable structure includes porches, gazebos, and other attached
improvements.
(3) Council means the South Carolina Coastal Council.
(4) Beach nourishment means the artificial establishment and
periodic renourishment of a beach with sand that is compatible with
the existing beach in a way so as to create a dry sand beach at all
stages of the tide.
(5) The beach/dune system includes all land from the mean
highwater mark of the Atlantic Ocean landward to the setback line
described in Section 48-39-280.
(6) A standard erosion zone is a segment of shoreline which is
subject to essentially the same set of coastal processes, has a fairly
constant range of profiles and sediment characteristics, and is not
influenced directly by tidal inlets or associated inlet shoals.
(7) An inlet erosion zone is a segment of shoreline along or
adjacent to tidal inlets which is influenced directly by the inlet and
its associated shoals.
(8) Master plan means a document or a map prepared by a
developer or a city as a policy guide to decisions about the physical
development of the project or community.
(9) Planned development means a development plan which has
received local approval for a specified number of dwelling and other
units. The siting and size of structures and amenities are specified
or restricted within the approval. This term specifically references
multifamily or commercial projects not otherwise referenced by the
terms, master plan, or planned unit development.
(10) Planned unit development means a residential, commercial, or
industrial development, or all three, designed as a unit and approved
by local government.
(11) Destroyed beyond repair means that more than sixty-six and
two-thirds percent of the replacement value of the habitable structure
or pool has been destroyed. If the owner disagrees with the appraisal
of the council, he may obtain an appraisal to evaluate the damage to
the building or pool. If the appraisals differ, then the two
appraisers must select a third appraiser. If the two appraisers are
unable to select a third appraiser, the clerk of court of the county
where the structure lies must make the selection. Nothing in this
section prevents a court of competent jurisdiction from reviewing, de
novo, the appraisal upon the petition of the property owner.
(12) Pool is a structure designed and used for swimming and
wading.
(13) Active beach is that area seaward of the escarpment or the
first line of stable natural vegetation, whichever first occurs,
measured from the ocean.
Section 48-39-280. (A) A forty-year policy of retreat from the
shoreline is established. The council must implement this policy and
must utilize the best available scientific and historical data in the
implementation. The council must establish a baseline which parallels
the shoreline for each standard erosion zone and each inlet erosion
zone.
(1) The baseline for each standard erosion zone is
established at the location of the crest of the primary oceanfront
sand dune in that zone. In standard erosion zones in which the
shoreline has been altered naturally or artificially by the
construction of erosion control devices, groins, or other manmade
alterations, the baseline must be established by the council using the
best scientific and historical data, as where the crest of the primary
oceanfront sand dunes for that zone would be located if the shoreline
had not been altered.
(2) The baseline for inlet erosion zones that are not
stabilized by jetties, terminal groins, or other structures must be
determined by the council as the most landward point of erosion at any
time during the past forty years, unless the best available scientific
and historical data of the inlet and adjacent beaches indicate that
the shoreline is unlikely to return to its former position. In
collecting and utilizing the best scientific and historical data
available for the implementation of the retreat policy, the council,
as part of the State Comprehensive Beach Management Plan provided for
in this chapter, among other factors, must consider: historical inlet
migration, inlet stability, channel and ebb tidal delta changes, the
effects of sediment bypassing on shorelines adjacent to the inlets,
and the effects of nearby beach restoration projects on inlet sediment
budgets.
(3) The baseline within inlet erosion zones that are
stabilized by jetties, terminal groins, or other structures must be
determined in the same manner as provided for in item (1). However,
the actual location of the crest of the primary oceanfront sand dunes
of that erosion zone is the baseline of that zone, not the location if
the inlet had remained unstabilized.
(4) Notwithstanding any other provision of this section,
where a council-approved beach nourishment project has been completed,
the local government or the landowners, with notice to the local
government, may petition the council to move the baseline as far
seaward as the landward edge of the erosion control structure or
device or, if there is no existing erosion control structure or
device, then as far seaward as the post project baseline as determined
by the council in accordance with Section 48-39-280(A)(1) by showing
that the beach has been stabilized by council-approved beach
nourishment.
If the petitioner is asking that the baseline be moved seaward
pursuant to this section, he must show an ongoing commitment to
renourishment which will stabilize and maintain the dry sand beach at
all stages of the tide for the foreseeable future.
If the council grants the petition to move the baseline seaward
pursuant to this section, no new construction may occur in the area
between the former baseline and the new baseline for three years after
the initial beach nourishment project has been completed as determined
by the council.
If the beach nourishment fails to stabilize the beach after a
reasonable period of time, the council must move the baseline landward
to the primary oceanfront sand dune as determined pursuant to items
(1), (2), and (3) for that section of the beach.
(B) To implement the retreat policy provided for in subsection
(A), a setback line must be established landward of the baseline a
distance which is forty times the average annual erosion rate or not
less than twenty feet from the baseline for each erosion zone based
upon the best historical and scientific data adopted by the council as
a part of the State Comprehensive Beach Management Plan.
(C) The council, before July 3, 1991, must establish a final
baseline and setback line for each erosion zone based on the best
available scientific and historical data as provided in subsection (B)
and with consideration of public input. The baseline and setback line
must not be revised before July 1, 1998, nor later than July 1, 2000.
After that revision, the baseline and setback line must be revised not
less than every eight years but not more than every ten years after
each preceding revision. In the establishment and revision of the
baseline and setback line, the council must transmit and otherwise
make readily available to the public all information upon which its
decisions are based for the establishment of the final baseline and
setback line. The council must hold one public hearing before
establishing the final baseline and setback lines. Until the council
establishes new baselines and setback lines, the existing baselines
and setback lines must be used. The council may stagger the revision
of the baselines and setback lines of the erosion zones so long as
every zone is revised in accordance with the time guidelines
established in this section.
(D) In order to locate the baseline and the setback line, the
council must establish monumented and controlled survey points in each
county fronting the Atlantic Ocean. The council must acquire
sufficient surveyed topographical information on which to locate the
baseline. Surveyed topographical data typically must be gathered at
two thousand foot intervals. However, in areas subject to significant
near-term development and in areas currently developed, the interval,
at the discretion of the council, may be more frequent. The resulting
surveys must locate the crest of the primary oceanfront sand dunes to
be used as the baseline for computing the forty-year erosion rate. In
cases where no primary oceanfront sand dunes exist, a study conducted
by the council is required to determine where the upland location of
the crest of the primary oceanfront sand dune would be located if the
shoreline had not been altered. The council, by regulation, may
exempt specifically described portions of the coastline from the
survey requirements of this section when, in its judgment, the
portions of coastline are not subject to erosion or are not likely to
be developed by virtue of local, state, or federal programs in effect
on the coastline which would preclude significant development, or
both.
(E) A landowner claiming ownership of property affected who
feels that the final or revised setback line, baseline, or erosion
rate as adopted is in error, upon submittal of substantiating
evidence, must be granted a review of the setback line, baseline, or
erosion rate, or a review of all three. The requests must be
forwarded to the appropriate committee of the council and handled in
accordance with the council's regulations on appeals.
Section 48-39-290. (A) No new construction or reconstruction is
allowed seaward of the baseline except:
(1) wooden walkways no larger in width than six feet;
(2) small wooden decks no larger than one hundred
forty-four square feet;
(3) fishing piers which are open to the public. Those
fishing piers with their associated structures including, but not
limited to, baitshops, restrooms, restaurants, and arcades which
existed September 21, 1989, may be rebuilt if they are constructed to
the same dimensions and utilized for the same purposes and remain open
to the public. In addition, those fishing piers with their associated
structures which existed on September 21, 1989, that were privately
owned, privately maintained, and not open to the public on this date
also may be rebuilt and used for the same purposes if they are
constructed to the same dimensions;
(4) golf courses;
(5) normal landscaping;
(6) structures specifically permitted by special permit as
provided in subsection (D);
(7) pools may be reconstructed if they are landward of an
existing, functional erosion control structure or device.
A permit must be obtained from the council for items (2) through
(7).
(B) Construction, reconstruction, or alterations between the
baseline and the setback line are governed as follows:
(1) Habitable structures:
(a) New habitable structures: If part of a new
habitable structure is constructed seaward of the setback line, the
owner must certify in writing to the council that the construction
meets the following requirements:
(i) The habitable structure is no larger than
five thousand square feet of heated space. The structure must be
located as far landward on the property as practicable. A drawing must
be submitted to the council showing a footprint of the structure on
the property, a cross section of the structure, and the structure's
relation to property lines and setback lines which may be in effect.
No erosion control structure or device may be incorporated as an
integral part of a habitable structure constructed pursuant to this
section.
(ii) No part of the building is being
constructed on the primary oceanfront sand dune or seaward of the
baseline.
(b) Habitable structures which existed on the
effective date of Act 634 of 1988 or constructed pursuant to this
section:
(i) Normal maintenance and repair of habitable
structures is allowed without notice to the council.
(ii) Additions to habitable structures are
allowed if the additions together with the existing structure do not
exceed five thousand square feet of heated space. Additions to
habitable structures must comply with the conditions of new habitable
structures as set forth in subitem (a).
(iii) Repair or renovation of habitable
structures damaged, but not destroyed beyond repair, due to natural or
manmade causes is allowed.
(iv) Replacement of habitable structures
destroyed beyond repair due to natural causes is allowed after
notification is provided by the owner to the council that all of the
following requirements are met:
a. The total square footage of the
replaced structure seaward of the setback line does not exceed the
total square footage of the original structure seaward of the setback
line. The linear footage of the replaced structure parallel to the
coast does not exceed the original linear footage parallel to the
coast.
b. The replaced structure is no
farther seaward than the original structure.
c. Where possible, the replaced
structure is moved landward of the setback line or, if not possible,
then as far landward as is practicable, considering local zoning and
parking regulations.
d. The reconstruction is not
seaward of the baseline unless permitted elsewhere in Sections
48-39-250 through 48-39-360.
(v) Replacement of habitable structures
destroyed beyond repair due to manmade causes is allowed provided the
rebuilt structure is no larger than the original structure it replaces
and is constructed as far landward as possible, but the new structure
must not be farther seaward than the original structure.
(2) Erosion control devices:
(a) No new erosion control structures or devices are
allowed seaward of the setback line except to protect a public highway
which existed on the effective date of this act.
(b) Erosion control structures or devices which
existed on the effective date of this act must not be repaired or
replaced if destroyed:
(i) more than eighty percent above grade
through June 30, 1995;
(ii) more than sixty-six and two-thirds
percent above grade from July 1, 1995, through June 30, 2005;
(iii) more than fifty percent above grade
after June 30, 2005.
(iv) Damage to seawalls and bulkheads must
be judged on the percent of the structure remaining intact at the time
of damage assessment. The portion of the structure or device above
grade parallel to the shoreline must be evaluated. The length of the
structure or device parallel to the shoreline still intact must be
compared to the length of the structure or device parallel to the
shoreline which has been destroyed. The length of the structure or
device parallel to the shoreline determined to be destroyed divided by
the total length of the original structure or device parallel to the
shoreline yields the percent destroyed. Those portions of the
structure or device standing, cracked or broken piles, whalers, and
panels must be assessed on an individual basis to ascertain if these
components are repairable or if replacement is required. Revetments
must be judged on the extent of displacement of stone, effort required
to return these stones to the prestorm event configuration of the
structure or device, and ability of the revetment to retain backfill
material at the time of damage assessment. If the property owner
disagrees with the assessment of a registered professional engineer
acting on behalf of the council, he may obtain an assessment by a
registered professional engineer to evaluate, as set forth in this
item, the damage to the structure or device. If the two assessments
differ, then the two engineers who performed the assessments must
select a registered professional engineer to perform the third
assessment. If the first two engineers are unable to select an
engineer to perform the third assessment, the clerk of court of the
county where the structure or device lies must make the selection of a
registered professional engineer. The determination of percentage of
damage by the third engineer is conclusive.
(v) The determination of the degree of
destruction must be made on a lot by lot basis by reference to county
tax maps.
(vi) Erosion control structures or devices
must not be enlarged, strengthened, or rebuilt but may be maintained
in their present condition if not destroyed more than the percentage
allowed in Section 48-39-290(B)(2)(b)(i), (ii), and (iii). Repairs
must be made with materials similar to those of the structure or
device being repaired.
(c) Erosion control structures or devices determined
to be destroyed more than the percentage allowed in Section
48-39-290(B)(2)(b)(i), (ii), and (iii) must be removed at the owner's
expense. Nothing in this section requires the removal of an erosion
control structure or a device protecting a public highway which
existed on the effective date of Act 634 of 1988.
(d) The provisions of this section do not affect or
modify the provisions of Section 48-39-120(C).
(3) Pools, as defined in Section 48-39-270(12):
(a) No new pools may be constructed seaward of the
setback line unless the pool is built landward of an erosion control
structure or device which was in existence or permitted on the
effective date of this act and is built as far landward as practical.
(b) Normal maintenance and repair is allowed without
notice to the council.
(c) If a pool, existing on July 1, 1988, is destroyed
beyond repair, as determined by the council pursuant to Section
48-39-270(11), it may be replaced if the owner certifies in writing to
the council that:
(i) It is moved as far landward as
practical. This determination of practicality must include the
consideration of local zoning requirements.
(ii) It is rebuilt no larger than the destroyed
pool.
(iii) It is constructed according to acceptable
standards of pool construction and cannot be reinforced in a manner so
as to act as an erosion control structure or device.
(d) If a pool is not destroyed beyond repair as
determined by the council pursuant to Section 48-39-270(11) but the
owner wishes to replace it, the owner may do so if:
(i) The dimensions of the pool are not
enlarged.
(ii) The construction conforms to sub-subitem
(iii) of subitem (c).
(4) All other construction or alteration between the
baseline and the setback line requires a council permit. However, the
council, in its discretion, may issue general permits for construction
or alterations where issuance of the general permits would advance the
implementation and accomplishment of the goals and purposes of
Sections 48-39-250 through 48-39-360.
(C) (1) Notwithstanding the provisions relating to new
construction, a person, partnership, or corporation owning real
property that is affected by the setback line as established in
Section 48-39-280 may proceed with construction pursuant to a valid
building permit issued as of the effective date of this section. The
person, partnership, or corporation may proceed with the construction
of buildings and other elements of a master plan, planned development,
or planned unit development notwithstanding the setback line
established in this chapter if the person, partnership, or corporation
legally has begun a use as evidenced by at least one of the following:
(a) All building permits have been applied for or
issued by a local government before July 1, 1988.
(b) There is a master plan, planned development, or
planned unit development:
(i) that has been approved in writing by a local
government before July 1, 1988; or
(ii) where work has begun pursuant to approval as
evidenced by the completion of the utility and infrastructure
installation designed to service the real property that is subject to
the setback line and included in the approved master plan, planned
development, or planned unit development.
(2) However, repairs performed on a habitable structure
built pursuant to this section are subject to the guidelines for
repairs as set forth in this section.
(3) Nothing in this section prohibits the construction of
fishing piers or structures which enhance beach access seaward of the
baseline, if permitted by the council.
(D) Special permits:
(1) If an applicant requests a permit to build or rebuild
a structure other than an erosion control structure or device seaward
of the baseline that is not allowed otherwise pursuant to Sections
48-39-250 through 48-39-360, the council may issue a special permit to
the applicant authorizing the construction or reconstruction if the
structure is not constructed or reconstructed on a primary oceanfront
sand dune or on the active beach and, if the beach erodes to the
extent the permitted structure becomes situated on the active beach,
the permittee agrees to remove the structure from the active beach if
the council orders the removal. However, the use of the property
authorized under this provision, in the determination of the council,
must not be detrimental to the public health, safety, or welfare.
(2) The council's Permitting Committee is the committee to
consider applications for special permits.
(3) In granting a special permit, the committee may impose
reasonable additional conditions and safeguards as, in its judgment,
will fulfill the purposes of Sections 48-39-250 through 48-39-360.
(4) A party aggrieved by the committee's decision to grant
or deny a special permit application may appeal to the full council
pursuant to Section 48-39-150(D).
(E) The provisions of this section and Section 48-39-280 do not
apply to an area in which the erosion of the beaches located in its
jurisdiction is attributed to a federally authorized navigation
project as documented by the findings of a Section 111 Study conducted
under the authority of the federal Rivers and Harbors Act of 1968, as
amended by the federal Water Resources Development Act of 1986, and
approved by the United States Army Corps of Engineers. Nothing
contained in this subsection makes this area ineligible for beach
renourishment funds.
The baseline determined by the local governing body and the
council is the line of erosion control devices and structures and the
council retains its jurisdiction seaward of the baseline. In
addition, upon completion of a council approved beach renourishment
project, including the completion of a sand transfer system if
necessary for long-term stabilization, an area under a Section 111
Study becomes subject to all the provisions of this chapter.
For the purposes of this section, a beach nourishment project
stabilizing the beach exists if a successful restoration project is
completed consisting of at least one hundred fifty cubic yards a foot
over a length of five and one-half miles, with a project design
capable of withstanding a one-in-ten-year storm, as determined by
council, and renourishment is conducted annually at a rate, agreed
upon by the council and local governing body, equivalent to that which
would occur naturally if the navigation project causing the erosion
did not exist. If the two parties cannot agree, then the council must
obtain the opinion of an independent third party.
Any habitable structure located in an area in which the erosion
of the beaches located in its jurisdiction is attributed to a
federally authorized navigation project as documented by the findings
of a Section 111 Study, which was in existence on September 21, 1989,
and was over forty years old on that date and is designated by the
local governing body as an historical landmark may be rebuilt seaward
of the baseline if it is rebuilt to the exact specifications,
dimensions, and exterior appearance of the structure as it existed on
that date.
Section 48-39-300. A local governing body, if it notifies the
council before July 1, 1990, may exempt from the provisions of Section
48-39-290, relating to reconstruction and removal of erosion control
devices, the shorelines fronting the Atlantic Ocean under its
jurisdiction where coastal erosion has been shown to be attributed to
a federally authorized navigation project as documented by the
findings of a Section 111 Study conducted under the authority of the
Rivers and Harbors Act of 1968, as amended by the Water Resources
Development Act of 1986 and approved by the United States Army Corps
of Engineers. Erosion control devices exempt under this section must
not be constructed seaward of their existing location, increased in
dimension, or rebuilt out of materials different from that of the
original structure.
Section 48-39-305. (A) A person having a recorded interest or
interest by operation of law in or having registered claim to land
seaward of the baseline or setback line which is affected by the
prohibition of construction or reconstruction may petition the circuit
court to determine whether the petitioner is the owner of the land or
has an interest in it. If he is adjudged the owner of the land or to
have an interest in it, the court shall determine whether the
prohibition so restricts the use of the property as to deprive the
owner of the practical uses of it and is an unreasonable exercise of
police power and constitutes a taking without compensation. The
burden of proof is on the petitioner as to ownership, and the burden
of proof is on the State to prove that the prohibition is not an
unreasonable exercise of police power.
(B) The method provided in this section for the determination of
the issue of whether the prohibition constitutes a taking without
compensation is the exclusive judicial determination of the issue, and
it must not be determined in another judicial proceeding. The court
shall enter a judgment in accordance with the issues. If the judgment
is in favor of the petitioner, the order must require the State either
to issue the necessary permits for construction or reconstruction of a
structure, order that the prohibition does not apply to the property,
or provide reasonable compensation for the loss of the use of the land
or the payment of costs and reasonable attorney's fees, or both.
Either party may appeal the court's decision.
Section 48-39-310. The destruction of beach or dune vegetation
seaward of the setback line is prohibited unless there is no feasible
alternative. When there is destruction of vegetation permitted
seaward of the setback line, mitigation, in the form of planting of
new vegetation where possible, for the destruction is required as part
of the permit conditions.
Section 48-39-320. (A) The council's responsibilities include the
creation of a long-range and comprehensive beach management plan for
the Atlantic Ocean shoreline in South Carolina. The plan must include
all of the following:
(1) development of the data base for the state's coastal
areas to provide essential information necessary to make informed and
scientifically based decisions concerning the maintenance or
enhancement of the beach/dune system;
(2) development of guidelines and their coordination with
appropriate agencies and local governments for the accomplishment of:
(a) beach/dune restoration and nourishment, including
the projected impact on coastal erosion rates, cost/benefit of the
project, impact on flora and fauna, and funding alternatives;
(b) development of a beach access program to preserve
the existing public access and enhance public access to assure full
enjoyment of the beach by all residents of this State;
(c) maintenance of a dry sand and ecologically stable
beach;
(d) protection of all sand dunes seaward of the
setback line;
(e) protection of endangered species, threatened
species, and important habitats such as nesting grounds;
(f) regulation of vehicular traffic upon the beaches
and the beach/dune system which includes the prohibition of vehicles
upon public beaches for nonessential uses;
(g) development of a mitigation policy for
construction allowed seaward of the setback line, which must include
public access ways, nourishment, vegetation, and other appropriate
means;
(3) formulation of recommendations for funding programs
which may achieve the goals set forth in the State Comprehensive Beach
Management Plan;
(4) development of a program on public education and
awareness of the importance of the beach/dune system, the project to
be coordinated with the South Carolina Educational Television Network
and Department of Parks, Recreation and Tourism;
(5) assistance to local governments in developing the
local comprehensive beach management plans.
(B) The plan provided for in this section is to be used for
planning purposes only and must not be used by the council to exercise
regulatory authority not otherwise granted in this chapter, unless the
plan is created and adopted pursuant to Chapter 23 of Title 1.
Section 48-39-330. Thirty days after the initial adoption by
the council of setback lines, a contract of sale or transfer of real
property located in whole or in part seaward of the setback line or
the jurisdictional line must contain a disclosure statement that the
property is or may be affected by the setback line, baseline, and the
seaward corners of all habitable structures referenced to the South
Carolina State Plane Coordinate System (N.A.D.-1983) and include the
local erosion rate most recently made available by the council for
that particular standard zone or inlet zone as applicable. Language
reasonably calculated to call attention to the existence of baselines,
setback lines, jurisdiction lines, and the seaward corners of all
habitable structures and the erosion rate complies with this section.
The provisions of this section are regulatory in nature and do
not affect the legality of an instrument violating the provisions.
Section 48-39-340. Funding for local governments to provide for
beachfront management must be distributed in a fair and equitable
manner. Consideration must be given to the size of the locality, the
need for beach management in the area, the cost/benefits of
expenditures in that area, and the best interest of the beach/dune
system of the State as established by priority by the council.
Section 48-39-350. (A) The local governments must prepare by July
1, 1991, in coordination with the council, a local comprehensive beach
management plan which must be submitted for approval to the council.
The local comprehensive beach management plan, at a minimum, must
contain all of the following:
(1) an inventory of beach profile data and historic erosion
rate data provided by the council for each standard erosion zone and
inlet erosion zone under the local jurisdiction;
(2) an inventory of public beach access and attendant
parking along with a plan for enhancing public access and parking;
(3) an inventory of all structures located in the area
seaward of the setback line;
(4) an inventory of turtle nesting and important habitats
of the beach/dune system and a protection and restoration plan if
necessary;
(5) a conventional zoning and land use plan consistent with
the purposes of this chapter for the area seaward of the setback line;
(6) an analysis of beach erosion control alternatives,
including renourishment for the beach under the local government's
jurisdiction;
(7) a drainage plan for the area seaward of the setback
zone;
(8) a post disaster plan including plans for cleanup,
maintaining essential services, protecting public health, emergency
building ordinances, and the establishment of priorities, all of which
must be consistent with this chapter;
(9) a detailed strategy for achieving the goals of this
chapter by the end of the forty-year retreat period. Consideration
must be given to relocating buildings, removal of erosion control
structures, and relocation of utilities;
(10) a detailed strategy for achieving the goals of
preservation of existing public access and the enhancement of public
access to assure full enjoyment of the beach by all residents of this
State.
The plan must be updated at least every five years in
coordination with the council following its approval. The local
governments and the council must implement the plan by July 1, 1992.
(B) Notwithstanding the provisions of Section 48-39-340, if a
local government fails to act in a timely manner to establish and
enforce a local coastal beach management plan, the council must impose
and implement the plan or the State Comprehensive Beach Management
Plan for the local government. If a local government fails to
establish and enforce a local coastal beach management plan, the
government automatically loses its eligibility to receive available
state-generated or shared revenues designated for beach/dune system
protection, preservation, restoration, or enhancement, except as
directly applied by the council in its administrative capacities.
Section 48-39-355. A permit is not required for an activity
specifically authorized in this chapter. However, the council may
require documentation before the activity begins from a person wishing
to undertake an authorized construction or reconstruction activity.
The documentation must provide that the construction or reconstruction
is in compliance with the terms of the exemptions or exceptions
provided in Sections 48-39-280 through 48-39-360.
Section 48-39-360. The provisions of Sections 48-39-250 through
48-39-355 do not apply to an area which is at least one-half mile
inland from the mouth of an inlet."
Beach Management Act revised
SECTION 4. Sections 1 and 2 of Act 634 of 1988 are repealed.
Placement of sand on beaches
SECTION 5. The General Assembly hereby recognizes the need for
maintaining navigation inlets to promote commercial and recreational
uses of our coastal waters and their resources. The General Assembly
further recognizes that inlets alter the natural drift of
beach-quality sand resources, which often results in these sand
resources being deposited around shallow outer-bar areas instead of
providing natural nourishment to the downdrift beaches. Therefore, it
is the intent of the General Assembly that:
(1) All construction and maintenance dredgings of beach-quality
sand be placed on the downdrift beaches or, if placed elsewhere, an
equivalent quality and quantity of sand from an alternate location be
placed on the downdrift beaches at no cost to the State and at a
location acceptable to the South Carolina Coastal Council.
(2) On an average annual basis, a quantity of sand be placed on
the downdrift beaches equal to the natural net annual longshore
sediment transport at no cost to the State. The placement location
and quantities based on natural net annual longshore transport be
established by the council and the sand quality be acceptable to the
council.
(3) The council may promulgate regulations necessary to
implement the provisions of this section."
Election of Coastal Council members
SECTION 6. Section 48-39-40 of the 1976 Code is amended to read:
"Section 48-39-40. (A) There is created the South Carolina
Coastal Council which consists of eighteen members as follows: eight
members, one from each coastal zone county, to be elected by a
majority vote of the members of the House of Representatives and a
majority vote of the Senate members representing the county from three
nominees submitted by the governing body of each coastal zone county,
each House or Senate member to have one vote; six members, one from
each of the congressional districts of the State, to be elected by a
majority vote of the members of the House of Representatives and the
Senate representing the counties in that district, each House or
Senate member to have one vote; and the following legislative members
who serve ex officio: two state senators, one to be appointed by the
President of the Senate and one to be elected by the Senate Fish, Game
and Forestry Committee; and two members of the House of
Representatives to be appointed by the Speaker of the House. The
council shall elect a chairman, vice-chairman, and other officers it
considers necessary.
(B) Terms of legislative members are coterminous with their
terms as members of the General Assembly. Terms of all nonlegislative
members are for four years and until successors are appointed and
qualify. Members from congressional districts serve terms of two
years only as determined by lot at the first meeting of the council.
Vacancies must be filled in the original manner of selection for the
remainder of the unexpired term."
Current nonlegislative Coastal Council members
SECTION 7. The current nonlegislative members of the South Carolina
Coastal Council representing the eight coastal zone counties serve
until their present terms of office expire at which time their
successors elected in the manner provided in Section 48-39-40 of the
1976 Code, as amended by this act, take office.
Application on legal actions
SECTION 8. Except as otherwise specifically provided in this act,
the provisions of this act shall be applied only prospectively and
shall not affect any legal action commenced or any cause of action
accruing as a result of an event or events which occurred before the
effective date of this act. Any such action must be governed by the
provisions of Sections 48-39-10 through 48-39-360, as amended by Act
634 of 1988, and in existence before the effective date of this act.
Time effective
SECTION 9. This act takes effect upon approval by the Governor.
Approved the 25th day of June, 1990.
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