THE STATE OF SOUTH CAROLINA

In The Supreme Court

Edward H. Seabrook, Jr.

and Folly North

Partners, LLC, Respondents,

v.

City of Folly Beach, a

municipal corporation,

Robert Linville, Fred

Holland, Jane Theiling,

Gered Lennon, Wallace

Benson, Vernon Knox,

and Allen Boyd, in their

official capacities as the

Mayor and as members

of the City Council of the

City of Folly Beach, Appellants.

Appeal From Charleston County

B. Hicks Harwell, Circuit Court Judge

Opinion No. 25018

Heard September 22, 1999 - Filed November 22, 1999

VACATED IN PART; APPEAL DISMISSED

James E. Reeves and Wendy J. Keefer, both of

Barnwell, Whaley, Patterson & Helms, of Charleston;

and Otis B. Peeples, Jr., of Peeples & Stringer, of

Charleston, for appellants.

p.26

William B.. Regan and Frances Cantwell, both of Regan &

Cantwell, of Charleston, for respondents.

Burnett, A.J.: This dispute arose over the City of Folly Beach's

decision to impose conditions upon the approval of Respondents' subdivision

plat. The circuit court granted Respondents' motion for summary judgment.

We vacate in part and dismiss this appeal as moot.

FACTUAL/PROCEDURAL BACKGROUND

Respondents are the owner and contract purchaser, respectively, of a

pristine undeveloped tract of land located on the easternmost end of Folly

Beach (Seabrook tract). Appellants are the City of Folly Beach, the mayor,

and members of city council (collectively, "Folly Beach" or "city council").

Respondents applied to subdivide the Seabrook tract into nine parcels for

residential development. Respondents complied with all the specific

engineering criteria of the Folly Beach ordinance for subdivision plats, a fact

admitted by Folly Beach. The planning and zoning board recommended

approval of the application, and forwarded the application to the city council,

as required by city ordinance.

Folly Beach had before it competent (though admittedly "unofficial" and

not disinterested) evidence of severe erosion on the Seabrook tract. Current

erosion was estimated at 9.6 feet per year,, and seven of the nine proposed lots

fronted the erosion zone. Folly Beach preliminarily approved the plat, but

imposed three conditions:

(1) When erosion proceeds to the point where man made improvements,

including any habitable structures, are within ten (10) feet of the active

beach, those improvements must be removed by the owner;

(2) The critical line (i.e., the landward edge of the beach) must be

reestablished on the property and then redrawn on the subdivision plat

prior to final approval; and

(3) Any current or future property owner must be made aware of the

erosion rate of ten (10) feet per year and each of these conditions.

p.27

The issue before the lower court was whether Folly Beach had the

authority to impose conditions upon the development of the land. The circuit

court held that it did not, finding the actions of Folly Beach were arbitrary

and capricious, deprived Respondents of due process of law, and amounted to

a taking without just compensation under both the United States and the

South Carolina Constitutions.

Thereafter, Folly Beach voluntarily removed the conditions and granted

approval of the plat. In response, the court modified its order to reflect that

only a temporary taking had occurred. Folly Beach appealed. On appeal,

Respondents abandoned their temporary taking claim, conceding there is

insufficient factual evidence of value in the record for the trial court to have

found the actions of Folly Beach deprived Respondents of all economically

viable use of their land.

LAW/ANALYSIS

"A case becomes moot when judgment, if rendered, will have no

practical effect upon existing controversy." Mathis v. South Carolina State

Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973). "A court may

take jurisdiction, despite mootness, if the issue raised is capable of

repetition, yet evading review." Charleston County Sch. Dist. v. Charleston

County Election Comm'n, (S.C. Sup. Ct. filed Aug. 2, 1999) (Shearouse Adv.

Sh. No. 26 at 4) (internal quotations and citations omitted).

We conclude this appeal is moot. Folly Beach voluntarily removed the

conditions and approved Respondents' plat and Respondents have abandoned

their taking claim. Accordingly, a ruling on the pending issues will have no

practical effect on the parties to this appeal. Moreover, while the factual

scenario presented by this appeal is certainly capable of repetition, it does

not evade review, and would have been clearly reviewable had Folly Beach

not voluntarily removed the conditions and Respondents abandoned their

taking claim.

CONCLUSION

The questions raised in this case have been resolved by the issuance of

the development permit and the abandonment of Respondents' taking claim.

p.28

We therefore vacate that part of the circuit court's order finding a temporary

taking occurred and dismiss this appeal as moot.

Finney, CA, Toal and Moore, JJ., concur. Waller, AA, not

participating.

p.29