Both sides say Appeals Court erred in beach easement dispute – Coastal Observer

Both sides say Appeals Court erred in beach easement dispute – Coastal Observer

The town of Pawleys Island and three south end property owners contesting efforts to obtain easements for beach renourishment have found some common ground. Both sides say a three-judge panel of the state Court of Appeals made mistakes in its recent opinions on awarding attorneys fees in two lawsuits. They have asked the court for a rehearing. Both sides say errors in the court’s opinion could have an impact on the town’s efforts to obtain the easements it says the Army Corps of Engineers requires in order to move forward with a $14 million project to place up to 200,000 cubic yards of offshore sand on the south end of Pawleys Island to repair damage from Hurricane Ian in 2022. Whether those easements are necessary is at the heart of the dispute and the request for a rehearing. Town Council reaffirmed this month that it will seek to condemn the easements, as it did in 2020 and 2021. The first effort was quashed in Circuit Court and the second was then withdrawn. The town challenged the property owners’ request for attorney’s fees in those cases and the lower court rulings reducing the fees were appealed by the property owners. Barry Stanton, an attorney and one of the owners, represents his two neighbors, Frank Beattie and Sunset Lodge LLC. He did not seek fees for representing himself. Although the Appeals Court increased the hours in their fee petition from 125 to 250, it was still just over a quarter of the 950 hours the owners sought. Stanton called it “a grossly deficient assessment” in the recent filing. The town, represented by Will Dillard, a Columbia attorney, said the record does not support an increase in the attorney’s fees. And it disputes the court’s criticism of the town’s condemnation efforts as “problematic,” “heavy-handed” and “poor behavior.”  “This language unfairly castigates the Town and its officials for their efforts to move forward with a critical public project in the face of an incredibly difficult adversary,” Dillard said in the recent filing. “The long-term federal partnership the Town is seeking is not some questionable municipal ‘vanity project’ or an improvement intended for the benefit of a well-connected individual.” That partnership is worth nearly $65 million in future renourishment costs to the town, according to Dillard. The property owners “will inevitably attempt to use the mistaken language in the Court’s opinion 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. The court was wrong to state that the Corps did not need the easements or that the language of the easements was “overly broad,” he said. “The central factual premise underlying all of this litigation is that the Army Corps requires this easement language,” he said in the filing. The owners “do not want to sign off on easements with the language required by the Corps. In plain terms, the Town would have absolutely no reason to go to all this trouble if the Corps did not specifically require it.” Stanton said the court “mostly understood what the town did wrong,” but missed the impact that had on the time it took to prepare the legal challenge.  “The town’s dishonest behavior was an overlapping basis for most of the multiple theories on which the landowners challenged the condemnation attempt,” he said in the filing. The easement wasn’t just “overly broad,” Stanton said. “They were objectionable in appropriating any public access at all.” The town obtained easements from more than 100 other south end property owners, “ruining the titles of those owners forever” with permanent public access, he said. The town said in its filing that the language of the easement is what the Corps requires. “Federal law provides that funds for beach renourishment activities may not be used on private portions of the shoreline,” Dillard said. He added that “the issue of necessity” was not addressed by the lower court in quashing the condemnation. The town also asked for a rehearing of the appeal of attorney’s fees in the second set of suits prompted by the 2021 condemnation that the town ultimately withdrew. The owners did not, saying the appeal over the first condemnation “simply involves more time and money, and involves more overlooked matters that need to be corrected for future purposes, including ongoing threats of the town to sue a third time.”