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South Carolina's Eminent Domain Laws and Property Rights

Property Rights in the State of South Carolina

South Carolina eminent domain actions are governed by the statutory framework set forth in South Carolina Code Section 28-2-10 et seq. This framework provides additional protections that landowners in some other states do not receive. For example, if a landowner “prevails” at trial, a landowner may recover costs and attorney’s fees. The South Carolina State Constitution also expressly protects landowners facing condemnation. The government’s ability to condemn is limited because of state courts’ narrow interpretations of the “public use doctrine.” South Carolina is somewhat unique in that it gives landowners the opportunity to stop an eminent domain action, but by initiating a separate legal proceeding known as a right to take challenge.

Meet OCA's South Carolina Attorney

Keith M. Babcock

Eminent domain law is one of Keith Babcock’s primary areas of practice, with the vast majority of his condemnation clients being South Carolina landowners. Before entering private practice in 1981, Keith served as an Assistant Attorney General for the State of South Carolina, where he first began litigating condemnation cases, representing the South Carolina Department of Transportation in various counties throughout the State. Keith’s firm represented landowner David Lucas in a successful regulatory takings claim against the South Carolina Coastal Commission. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886 (1992), the United States Supreme Court held that government regulations denying a property owner all “economically viable use” of the land constitute a taking of private property for which just compensation must be paid.

A SUMMARY OF SOUTH CAROLINA’S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    The State, state agencies, local municipalities, and certain utilities and other entities can exercise the power of eminent domain in South Carolina. While the State’s authority to condemn is established in the State Constitution, other governmental entities, agencies, and utilities may only condemn to the extent they have been authorized to do so under state law.

  • What Are the Legal Requirements for Exercising the Power?

    South Carolina condemning authorities may only take property for a public use. A use is considered “public” only if the public will have a “definite and fixed use, independent of the will of another” at the taken property. Condemning authorities are also required to comply with various procedural requirements set forth in S.C. Code Ann. § 28-2-10 et seq., such as providing an appraisal, an offer, and making a “reasonable and diligent” effort to negotiate a settlement regarding the amount of compensation.

  • What Limitations or Defenses Exist?

    In certain circumstances, a landowner may challenge the government’s right to condemn. The challenge is initiated through a separate legal proceeding that the landowner must bring against the condemnor within 30 days after service of the condemnation notice. In South Carolina, the eminent domain proceeding is automatically stayed until the resolution of this challenge. If the Court determines that the condemnor does not have a right to take, the landowner’s reasonable costs and litigation expenses are awarded to the landowner. However, if the Court determines that the “right to take” issue was not raised in good faith by the landowner, the Court must award the condemnor its reasonable costs and litigation expenses incurred.

  • What Constitutes a Public Purpose?

    South Carolina courts have narrowly defined and applied the public use doctrine in condemnation cases, thus putting a higher burden on condemning authorities to identify a clearly defined use for the property that will benefit the public at large. For example, an overly broad purpose like “economic development” with a private developer ultimately owning the underlying land would generally not be considered a public purpose in South Carolina. More commonly, proper public purposes involve taking land to improve public roadways or utility easements.

  • How is Just Compensation Determined?

    In South Carolina, eminent domain cases focus on the amount of just compensation owed for the taking. Landowners are entitled to compensation for the value of the property taken—generally referred to as “fair market value”—plus any decrease in value of the remaining land, adjusted for any benefits to the landowner’s remaining land due to the public project. The date of valuation for determining just compensation is the date of the filing of the condemnation notice.

  • How Is Fair Market Value Defined?

    In South Carolina, fair market value is generally defined as the amount a willing buyer would pay a willing seller for the property, with neither party being under compulsion to buy or sell. In other words, determining the objective market price as of the date of condemnation. The property’s “highest and best use,” even if the property is not currently being used for that purpose, is accounted for in this determination. Both landowners and expert real estate appraisers can testify as to their opinions of the property’s fair market value.

  • What About Recovering Damages to Remaining Property?

    By statute, South Carolina landowners are entitled to compensation for the amount of land taken plus any damages to the remainder of the property. Both landowners and expert appraisers can testify as to the amount of damages to the remainder. Such damages can include the reduced economic viability of the property due to diminished road access, limitation on the use of the property, and other variables that impact home and business owners. However, lost business profits are not compensable under South Carolina law.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    If a South Carolina landowner “prevails” against the government in a condemnation trial, the landowner may recover its reasonable litigation expenses. The expenses include attorney fees, expert fees, deposition costs, and other related trial expenses. “Prevailing” means that the just compensation awarded, exclusive of interest, is “at least as close to the highest valuation of the property that is attested to at trial on behalf of the landowner, as it is to the highest valuation of property that is attested to at the beginning of the trial on behalf of the condemnor.” S.C. Code Ann. § 28-2-510(B). This award is determined by the court after an application is made within 15 days of the entry of judgment.

REFERENCES AND LINKS

South Carolina

Lewis Babcock, L.L.P.
1513 Hampton Street
Columbia, SC 29211
Tel:(803) 771-8000 | Fax:(803) 733-3534
kmb@lewisbabcock.com | www.lewisbabcock.com

Significant Eminent Domain Representations and Reported Decisions

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886 (1992). In one of the most significant property rights decisions in the last twenty-five years, Mr. Babcock’s firm represented David Lucas, who challenged an action by the South Carolina Coastal Council as a taking of his property. This case was successfully argued before the United States Supreme Court by Mr. Babcock’s partner, A. Camden Lewis. This case resulted in Mr. Lucas receiving compensation from the State of South Carolina because the enforcement of the South Carolina Beach Front Management Act resulted in Mr. Lucas being barred from erecting any permanent habitable structure on his land, which the Supreme Court held deprived him of all economically viable use of his property.
  • Manning v. City of Columbia, 297 S.C. 451, 377 S.E.2d 335 (1989). In this case, Mr. Babcock and his partner, A. Camden Lewis, represented a landowner, Burwell D. Manning, Jr., in an action against the City of Columbia for the flooding of his property. Mr. Manning had conveyed property to the City of Columbia on the Congaree River by deed that included a covenant requiring the City to maintain levies at the same height at the time of the conveyance. Mr. Manning retained the adjacent land to the levies, and suit was brought against the City of Columbia for inverse condemnation and breach of contract after the City’s portion of the levy broke in two places, allowing the river to flood Mr. Manning’s property. The City of Columbia denied not only its liability, but also damages. A jury disagreed, returning a verdict in the amount of $4,125,000.00, which verdict was upheld by the South Carolina Supreme Court.
  • Central Electric Power Cooperative v. IN RE: Condemnation of a 75 foot right-of-way 760 feet long across lands in Kershaw belonging to Candace McKey, Unpublished Opinion No. UP-670 (S.C. Ct. App. 2003). Not all cases go to the United States Supreme Court or involve verdicts of more than seven figures, but all condemnation cases are important when a landowner’s property has been taken by a governmental entity. In this case, Mr. Babcock represented a landowner whose undeveloped tract of land was being impacted by the installation of an electric transmission line. At trial, the condemning authority’s appraiser testified to just compensation in the amount of $4,800.00, whereas the Landowner’s appraiser testified to just compensation in the amount of $54,500.00. The jury ultimately returned a verdict of $48,500.00. By statute, as a result of the jury’s verdict being so close to the Landowner’s appraiser’s testimony, the Landowner was also awarded his costs, expert expenses, and attorneys fees.
  • Layman v. State, 368 S.C. 631, 630 S.E.2d 265 (2006). Some cases involve takings in unique settings. In this case, Mr. Babcock and his firm, along with another South Carolina attorney, brought suit against the State of South Carolina and the South Carolina Retirement System for a statutory change to a special state retirement program. The South Carolina Supreme Court, which decided this matter in its original jurisdiction, did not reach the takings issue, which had been raised, but decided the case on a breach of contract theory, awarding an immediate refund to this group of retirees in the amount of $37 million dollars and prohibited the state from taking an additional $72 million dollars in the future.
  • SCDOT v. Barefoot Resort Golf Club, LLC, et al., Civil Action No. 01-CP-26-1503. This condemnation action involved an acquisition by the South Carolina Department of Transportation for a new roadway in Myrtle Beach, South Carolina. Mr. Babcock and his partner, A. Camden Lewis, represented the landowner, which had settled the amount the landowner was to receive for the land actually taken prior to Mr. Babcock’s firm being engaged in the case. In July of 2006, a jury returned a verdict in the amount of $2,750,000.00 for damages to the golf course.
  • SCDOT v. Kellogg Corporation, Civil Action No. 07-CP-02-492. In this condemnation action, SCDOT acquired slightly more than 62 acres for the construction of the Palmetto Parkway. The DOT presented expert testimony at trial that the Landowner was entitled to less than $500,000.00 for the land acquired and the damage to the remainder. Mr. Babcock and his associate, Brady Thomas, represented the Landowner, and they presented expert testimony that the Landowner was entitled to approximately $1,000,000.00. In a jury trial in April 2008, a jury returned a verdict in the amount of $1,336,518.00, which the DOT did not appeal.

Speaking Engagements

  • American Law Institute, Eminent Domain, “Condemnation 101: Wanna Win ? Effective Attorney-Appraiser Interaction,” January 2018, Charleston, SC.
  • American Law Institute, Eminent Domain, “The Project Influence Rule and its Evidentiary Burdens,” January 2018, Charleston, SC
  • University of South Carolina Law School, Guest Lecturer, “Commercial Real Estate Transactions – Eminent Domain Overview,” November 2017, March 2013, March 2012, March 2011, Columbia, SC
  • American Law Institute, Eminent Domain, “Condemnation 101: The Difference between Winning and Losing,” January 2017, San Diego, CA
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Valuation of Temporary Construction Easements,” January 2015, San Francisco, CA.
  • American Law Institute, Condemnation 101, “Name That Tune: Common Trial Themes used by Condemnors and Condemnees,” January 2015, San Francisco, CA.
  • American Law Institute, Condemnation 101: How to Prepare and Present an Eminent Domain Case, “The Income Approach to Value: What Makes it Tick,” January 2014, New Orleans, LA.
  • University of South Carolina Law School, Commercial Real Estate Transactions, Guest Lecturer, “Eminent Domain Overview,” March 2013, March 2012 and March 2011, Columbia, SC.
  • American Law Institute-American Bar Association, Condemnation 101: Winning the High Ground with Fundamentals of Eminent Domain Valuation and Trial Practice, “What a Lawyer Should Look for When Reviewing an Appraisal in Eminent Domain,” January 2012, San Diego, CA.
  • American Law Institute-American Bar Association, Condemnation 101: Making the Complex Simple in Eminent Domain, “Representing the Condemnee and Winning from the Start: Overview and Suggestions for a Case Plan,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association, Condemnation 101: How to Prepare and Present an Eminent Domain Case, January 2009, Miami Beach, FL.
  • American Law Institute-American Bar Association, Condemnation 101: Fundamentals of Condemnation Law and Land Valuation, January 2008, San Francisco, CA.
  • South Carolina Bar, Real Estate Section, Eminent Domain CLE, “Condemnation Practice,” December 2007, Columbia, SC.
  • CLE International, South Carolina Eminent Domain Conference, “Environmental Issues in Condemnation Cases,” September 2006, North Charleston, SC.
  •  CLE International, South Carolina Eminent Domain Conference, “Public Taking for Private Gain,” February 2005, Charleston, SC.
  •  American Law Institute-American Bar Association, Eminent Domain and Land Valuation Litigation, “Environmental Issues and Interaction with State Environmental Agencies,” January 2005, Miami, FL.

Publications

Professional Affiliations

  • Civil Justice Advisory Committee, District of South Carolina, 1991–1993
  • South Carolina Board of Law Examiners, 2001–2006
  • South Carolina Bar Chairman (Professional Responsibility Committee, 1985–1986 and Professional Liability Committee, 2013–2015)
  • South Carolina Association for Justice
  • South Carolina Chapter of the American Board of Trial Advocates (President 2016)

Education

  • Princeton University, A.B.
  • George Washington University, J.D., with honors

Bar Admissions and Memberships

  • South Carolina, 1977
  • U.S. District Court, District of South Carolina, 1977
  • U.S. Court of Appeals, Fourth Circuit, 1977
  • United States Court of Federal Claims, 1979
  • U.S. Supreme Court, 1980
  • U.S. Tax Court, 1981
  • American Bar Association
  • Federal Bar Association, South Carolina Chapter
  • South Carolina Bar Association
  • Richland County Bar Association

Honors and Awards

Significant Eminent Domain Representations and Reported Decisions

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886 (1992). In one of the most significant property rights decisions in the last twenty-five years, Mr. Babcock’s firm represented David Lucas, who challenged an action by the South Carolina Coastal Council as a taking of his property. This case was successfully argued before the United States Supreme Court by Mr. Babcock’s partner, A. Camden Lewis. This case resulted in Mr. Lucas receiving compensation from the State of South Carolina because the enforcement of the South Carolina Beach Front Management Act resulted in Mr. Lucas being barred from erecting any permanent habitable structure on his land, which the Supreme Court held deprived him of all economically viable use of his property.
  • Manning v. City of Columbia, 297 S.C. 451, 377 S.E.2d 335 (1989). In this case, Mr. Babcock and his partner, A. Camden Lewis, represented a landowner, Burwell D. Manning, Jr., in an action against the City of Columbia for the flooding of his property. Mr. Manning had conveyed property to the City of Columbia on the Congaree River by deed that included a covenant requiring the City to maintain levies at the same height at the time of the conveyance. Mr. Manning retained the adjacent land to the levies, and suit was brought against the City of Columbia for inverse condemnation and breach of contract after the City’s portion of the levy broke in two places, allowing the river to flood Mr. Manning’s property. The City of Columbia denied not only its liability, but also damages. A jury disagreed, returning a verdict in the amount of $4,125,000.00, which verdict was upheld by the South Carolina Supreme Court.
  • Central Electric Power Cooperative v. IN RE: Condemnation of a 75 foot right-of-way 760 feet long across lands in Kershaw belonging to Candace McKey, Unpublished Opinion No. UP-670 (S.C. Ct. App. 2003). Not all cases go to the United States Supreme Court or involve verdicts of more than seven figures, but all condemnation cases are important when a landowner’s property has been taken by a governmental entity. In this case, Mr. Babcock represented a landowner whose undeveloped tract of land was being impacted by the installation of an electric transmission line. At trial, the condemning authority’s appraiser testified to just compensation in the amount of $4,800.00, whereas the Landowner’s appraiser testified to just compensation in the amount of $54,500.00. The jury ultimately returned a verdict of $48,500.00. By statute, as a result of the jury’s verdict being so close to the Landowner’s appraiser’s testimony, the Landowner was also awarded his costs, expert expenses, and attorneys fees.
  • Layman v. State, 368 S.C. 631, 630 S.E.2d 265 (2006). Some cases involve takings in unique settings. In this case, Mr. Babcock and his firm, along with another South Carolina attorney, brought suit against the State of South Carolina and the South Carolina Retirement System for a statutory change to a special state retirement program. The South Carolina Supreme Court, which decided this matter in its original jurisdiction, did not reach the takings issue, which had been raised, but decided the case on a breach of contract theory, awarding an immediate refund to this group of retirees in the amount of $37 million dollars and prohibited the state from taking an additional $72 million dollars in the future.
  • SCDOT v. Barefoot Resort Golf Club, LLC, et al., Civil Action No. 01-CP-26-1503. This condemnation action involved an acquisition by the South Carolina Department of Transportation for a new roadway in Myrtle Beach, South Carolina. Mr. Babcock and his partner, A. Camden Lewis, represented the landowner, which had settled the amount the landowner was to receive for the land actually taken prior to Mr. Babcock’s firm being engaged in the case. In July of 2006, a jury returned a verdict in the amount of $2,750,000.00 for damages to the golf course.
  • SCDOT v. Kellogg Corporation, Civil Action No. 07-CP-02-492. In this condemnation action, SCDOT acquired slightly more than 62 acres for the construction of the Palmetto Parkway. The DOT presented expert testimony at trial that the Landowner was entitled to less than $500,000.00 for the land acquired and the damage to the remainder. Mr. Babcock and his associate, Brady Thomas, represented the Landowner, and they presented expert testimony that the Landowner was entitled to approximately $1,000,000.00. In a jury trial in April 2008, a jury returned a verdict in the amount of $1,336,518.00, which the DOT did not appeal.

Speaking Engagements

  • American Law Institute, Eminent Domain, “Condemnation 101: Wanna Win ? Effective Attorney-Appraiser Interaction,” January 2018, Charleston, SC.
  • American Law Institute, Eminent Domain, “The Project Influence Rule and its Evidentiary Burdens,” January 2018, Charleston, SC
  • University of South Carolina Law School, Guest Lecturer, “Commercial Real Estate Transactions – Eminent Domain Overview,” November 2017, March 2013, March 2012, March 2011, Columbia, SC
  • American Law Institute, Eminent Domain, “Condemnation 101: The Difference between Winning and Losing,” January 2017, San Diego, CA
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Valuation of Temporary Construction Easements,” January 2015, San Francisco, CA.
  • American Law Institute, Condemnation 101, “Name That Tune: Common Trial Themes used by Condemnors and Condemnees,” January 2015, San Francisco, CA.
  • American Law Institute, Condemnation 101: How to Prepare and Present an Eminent Domain Case, “The Income Approach to Value: What Makes it Tick,” January 2014, New Orleans, LA.
  • University of South Carolina Law School, Commercial Real Estate Transactions, Guest Lecturer, “Eminent Domain Overview,” March 2013, March 2012 and March 2011, Columbia, SC.
  • American Law Institute-American Bar Association, Condemnation 101: Winning the High Ground with Fundamentals of Eminent Domain Valuation and Trial Practice, “What a Lawyer Should Look for When Reviewing an Appraisal in Eminent Domain,” January 2012, San Diego, CA.
  • American Law Institute-American Bar Association, Condemnation 101: Making the Complex Simple in Eminent Domain, “Representing the Condemnee and Winning from the Start: Overview and Suggestions for a Case Plan,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association, Condemnation 101: How to Prepare and Present an Eminent Domain Case, January 2009, Miami Beach, FL.
  • American Law Institute-American Bar Association, Condemnation 101: Fundamentals of Condemnation Law and Land Valuation, January 2008, San Francisco, CA.
  • South Carolina Bar, Real Estate Section, Eminent Domain CLE, “Condemnation Practice,” December 2007, Columbia, SC.
  • CLE International, South Carolina Eminent Domain Conference, “Environmental Issues in Condemnation Cases,” September 2006, North Charleston, SC.
  •  CLE International, South Carolina Eminent Domain Conference, “Public Taking for Private Gain,” February 2005, Charleston, SC.
  •  American Law Institute-American Bar Association, Eminent Domain and Land Valuation Litigation, “Environmental Issues and Interaction with State Environmental Agencies,” January 2005, Miami, FL.

Publications

Professional Affiliations

  • Civil Justice Advisory Committee, District of South Carolina, 1991–1993
  • South Carolina Board of Law Examiners, 2001–2006
  • South Carolina Bar Chairman (Professional Responsibility Committee, 1985–1986 and Professional Liability Committee, 2013–2015)
  • South Carolina Association for Justice
  • South Carolina Chapter of the American Board of Trial Advocates (President 2016)
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