USC Professor of Property Law Comments on Accreted Land Debate

Comments on Proposed Actions Regarding  Management of Accreted Land
Prof. Josh Eagle University of South Carolina School of Law

My name is Josh Eagle. I am an Associate Professor at the University of South Carolina School of Law. Since 2004, I have taught property law and a course on coastal land-use law at the School. I am currently writing a national law school textbook on the subject of coastal land-use law. In addition, I am very familiar with the law of conservation easements. I am here today, not as the representative of any person, but in order to provide some background on the law as it pertains to the decision regarding management of the accreted land. Although a group of Sullivan’s Island residents has asked me to address these issues, and has paid for the time I spent doing research and driving here from Columbia, I do not represent anyone other than myself, either as an attorney or in any other way. I do not have an opinion on what the Town Council should ultimately decide; rather, I have been thinking about the question of how it should make its decision, e.g., what kinds of factors it should or should not consider. There are two main legal points that the Town Council must consider in making its decision about the future of the accreted land.  First, pursuant to the body of law that covers municipal parks, call it “City Park Law,” the Town Council is the trustee of the accreted land, the accreted land is trust property, and the beneficiaries of the trust are the citizens of Sullivan’s Island and, because municipal power flows from the State, the citizens of South Carolina. It would thus be improper for the Town Council to weigh the interests of a small sector of the public in making its decision. One can think of this as preventing the distribution of trust assets disproportionately amongst beneficiaries. Disproportionate distribution would constitute a violation of the trustee’s fiduciary responsibility to treat all beneficiaries of the trust fairly. Moreover, it would also be improper for the Town Council to consider the financial benefits to the town associated with various management options. Court decisions in the City Park Law area make it clear that city parks are to be used for park purposes only; these cases strike down city proposals to use park property to generate revenue for cities through means that are even slightly inconsistent with park purposes. Second, the Deed Restrictions on the property make the Town Council a trustee of the accreted land a second time over. The trustee obligations under the arrangement between LCOLT and the Town of Sullivan’s Island are more specific, and arguably more stringent, than those created by the generally applicable law I just mentioned.

The Deed Restriction documents make three points very clearly. First, there is a presumption that the accreted land should be left in its natural state. (Deed Restrictions, Para. 1.) Second, while the restrictions allow for management actions inconsistent with that presumption, those actions must be “solely for” the in furtherance of one or more of the enumerated purely public purposes. (Deed Restrictions, Paras. 2 and 3.) The two key words here are (1) enumerated, and (2) solely. “Solely” for public purpose means that it would be improper for the Town Council to weigh the interests of a small sector of the public in making its decision. “Enumerated” means that it would be inappropriate for the Town Council to take action for the public purpose of raising revenue: this is not one of the enumerated public purposes listed in the Deed Restrictions. Lastly, it is incumbent upon the Town Council, pursuant to its obligations under both general law and the Deed Restrictions, to weigh all of the public costs and public benefits associated with whatever course of action it ultimately decides to follow. The decision-process should be explained in writing as completely as possible, and this explanation should spell out how the particular action is not only consistent with the general law and the Deed Restrictions, but also provides a net benefit to the citizens of Sullivan’s Island and the State. Thank for your consideration.

December 7, 2009

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