City sued for ‘taking’ waterfront lots

by Bill Davis | Current Staff Writer

Two oceanfront property-owning brothers have filed a “takings” lawsuit against the City of Folly Beach that could end up costing the city $2.5 million.

Last January, when the city was considering a proposed ordinance change meant to limit “super” beachfront development, one of the brothers fired off a pointed letter to Mayor Tim Goodwin.

The letter stated, in part, that this “construction ban on our property and other similarly situated properties is clearly in conflict with existing constitutionally protected property rights. It is effectively a regulatory taking … The adoption of the proposed ordinance will, not may, led [sic] promptly to litigation.”

That brother, Mark Braden, should know a thing or two about litigation, as he has been a lawyer for the Republican National Committee for the past decade, and has been involved in re-districting lawsuits in other states.

Last year, City Council approved the ordinance change, requiring that properties like the Bradens’ would have to be merged and sold as a single property.

Braden and his brother have since made good on their inferred threat, and filed suit against the city after the interpretation of the ordinance nixed a $1.1 million sale of one of their oceanfront properties, 1681-A E. Ashely.

They also own 1681-B E. Ashley, which sits in oceanfront of A, but behind a seawall. currently lists the value of the A house, a four-bedroom, six-bath residence with 3,600 square-feet of elevated living space, at $1.3 million. The property at B, with four bedrooms and four baths and 2,200 square feet, at $1.2 million.

Both are currently for sale, and if the city doesn’t prevail in court, there is a chance they may have to pay for both of them, or $2.5 million together.

Lawyers representing both the city and the Bradens have argued back and forth over the past year on opposite sides of U.S. Supreme Court rulings on individual property rights versus municipalities’ ability to govern zoning.

Joe Berry, a Columbia-based lawyer representing the brothers, says, “the city knows what it did is wrong,” and refused further comment as the matter is “under litigation.”

City attorney Joseph Wilson, on vacation in Minnesota with his kids last month, also declined to go into the specifics of the case. But he did offer some of the City Hall’s perspective.

“We have a merger ordinance that is common in almost any other municipality in the state and country,” he said. “These merger ordinances were recently approved by the Supreme Court of the United States.”

Wilson said that the city “is confident that this does not constitute a taking.” It is his and City Hall’s position that the house closer to the water is a “super beachfront” house, and that they are confident in their legal positions.

He added: “Big picture: the city is doing everything they can to further limited beachfront development, and this (lawsuit and ordinance) is one piece of many efforts.”

Diving into the back-and-forth legal letters, it appears that the brothers and their lawyers are also incensed that the city was seeking to limit the development after the fact, or retroactively.

They point out that they bought, owned, “and developed separate lots with building permits issued by the city, prior to the lot merger ordinance.” They also state that by requiring property owners of contiguous oceanfront properties to merge, it will reduce their value, affecting their reasonable expectations of profit at resale. 

Mayor Goodwin, who is not one usually to mince words, parsed a few out before saying he wouldn’t comment further, either.

“It is complicated; I guess we will see how a judge uncomplicates it,” he said.

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