Agenda - Planning Commission - 12/07/1999

Home

Page 8 --November 10, 1999 z.g. returned the plans and permit application to Sea Cabins because the zoning administrator found the pier had been destroyed, not just damaged. Sea Cabins appealed the zoning administrator's decision. The zoning board, the trial court, and the court of~ appeals aff'u-med the zoning administrator's ruling. However, the court of appeals granted Sea Cabins a rehearing and with- drew its original decision. It filed a new opinion holding that there was no evidence supporting the zoning board's finding that the pier was more than 75 percent damaged or destroyed. The zoning board appealed the case to the South Carolina Supreme Court, which declined to hear the case. As to the Beach Franchise Ordinance, the court ultimately ruled that it was invalid as it applied to Sea Cabins because Sea Cabins had property fights in the pier. Sea Cabins sued again, this time claming that the ordinances and the ac- tions of the city resulted in a taking of the pier during the time it could not be repaired. Sea Cabins sought compensation based upon inverse condemnation of the property. During this time, Lhe city issued Sea Cabins 'a permit. Construction'and repair of the pier was completed almost a year later. At trial, the court awarded almost $1 million to Sea Cabins. The city ap- pealed. It claimed that the city was not liable for inverse condemnation be- cause the ordinances and actions took only the pier and not all uses of the property. Further, the city maintained that since it was only a temporary taking, "all economically viable use" must be taken before it becomes compensable. DECISION: Reversed. Temporary takings that deny landowners all use of their property are just as compensable as permanent takings. Nothing in the Constitution suggests that a taking must be permanent and irrevocable. For an inverse condemnation to occur, there must be (1) an af-firmative, positive, aggressive act on the part of the governmental agency; (2) a taking; (3) the taking is for a public use; and (4) the taking has some degree of perma- nence. "Permanence" does not only mean the amount of time that the taking lasts. The important question is whether the property owner has been deprived of "all economically viable use." Whether a property has been taken or not depends upon looking at the property as a whole. The taking must be of the entire parcel and not just one portion. Sea Cabins still rented and sold units in is development during the time the pier was not allowed to be rebuilt. Even if these rentals were at a reduced rate, Sea Cabins was not deprived of all economic benefit. While the pier could not be utilized as desired, Sea Cabins could continue to use its prop- erty in an economically beneficial manner. Citation: Sea Cabins on the Ocean IV Homeowners Association Inc. v. City of North Myrtle Beach, Court of Appeals of South Carolina, No. 3050 (1999). see also: Staubes v. City of Folly Beach, 500 S.E. 2d 160 (1998).