Month: May 2023

State Farm will no longer accept new applications for home insurance in California

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My family has a modest second home in North Litchfield Beach. It isn’t close to the ocean. My Fitbit clocks 700 steps to the beach, and most family members prefer to drive a golf cart for that reason. To call it a “raised beach house” is an understatement. Because of flood insurance concerns, the garage level of the house was required to be very tall when we built in 2011.

We can’t paint or power wash with the tallest ladders available to homeowners. If we had a big boat, we could park it in the garage.  My point is that the living area of our house is so far above ground, that if it floods, it is likely that inland Pawleys Island and Georgetown County will also flood.

Thinking all the way back to Hurricane Hugo in 1989, my extended Georgetown County family members evacuated to Columbia to stay with us. Much to everyone’s surprise, our property in Columbia suffered more damage than their properties in Georgetown.

Earlier this year, we received a letter from our insurance agency indicating that it would attempt to obtain insurance for us for the upcoming insurance year, but we should be prepared for difficulty because of the frequency of hurricanes in our area.  There is no reason our house should be difficult to insure other than its location on the beach side of Highway 17.  

I share this information with South Carolina dirt lawyers, particularly those who practice in our coastal counties, for discussion purposes only. I’m not pushing a panic button by any means. But the headlines I read last week about State Farm’s decision to pull out of California as to new homeowners’ applications certainly caught my attention.

State Farm pointed to wildfire risks and construction cost inflation to justify its decision. Everyone is suffering from the latter, and, as to the former, the company didn’t attempt to limit the impact of its decision to those areas most affected by wildfires. Other stated concerns were climate change, reinsurance costs affecting the entire insurance industry, and global inflation. All of those concerns also affect all locations.

The company pulled out of the entire state as to new applications. And some news articles reported that State Farm is the largest insurer based on premium.  The fact that the largest insurer pulled out of the third largest state seems impactful.

The announcement did state that existing customers will not be affected and that automobile insurance applications will continue to be accepted.

There doesn’t appear to be anything we should do at this point, other than to keep our eyes and ears open as to developments in the area of insurance for ourselves and our clients.

Owner of Folly Beach lots loses takings case in SC Supreme Court

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Braden’s Folly, LLC v. City of Folly Beach* involves two small, contiguous developed residential coastal properties on the northeast end of Folly Beach. The City of Folly Beach amended an ordinance to require certain contiguous properties under common ownership, like the properties in question, to be merged into a single, larger property.

The ordinance did not impact the existing uses of the contiguous lots as vacation rental properties, but Braden’s Folly challenged the ordinance, claiming it had planned to sell one of the developed properties, and that the merger ordinance interfered with its investment-backed expectation under the Penn Central** test, which states that in regulatory takings cases, courts must examine the economic impact of the regulation on the property owner’s investment-backed expectations, as well as the character of the government action.

Folly Beach denied the claim of an unconstitutional regulatory taking, and pursuant to cross-motions for summary judgment, the circuit court agreed with Braden’s Folly. Folly Beach appealed to the South Carolina Supreme Court, which reversed and remanded the case for entry of judgment in favor of Folly Beach.

The Court stressed that underlying its applicability of the Penn Central test was the distinct fragility of Folly Beach’s coastline, which was subject to such extreme erosion that the General Assembly exempted Folly Beach from parts of the South Carolina Beachfront Management Act. The exemption empowered the City to act instead of the State in protecting the beach.

A portion of the northeast end of Folly beach has a double row of properties. The “A lots” are directly adjacent to the ocean-side of East Ashley Avenue, and the “B lots”—also known as “super-beachfront” lots—are closer to the ocean. There is no road between the A and B lots, so the B lots are accessible only through the A lots. Between beach renourishments, the B lots could be surrounded by the ocean on three sides. Braden’s Folly owns adjacent lots (Lot A and Lot B) on East Ashley Avenue. Both lots are very small.

Braden’s Folly contended that it had always intended to keep one of the lots and sell the other—whichever received the highest offer—to pay for the construction of a house on each lot. When the merger ordinance passed, the City sent a letter to Braden’s Folly requesting it stop marketing the lots separately. In response, Braden’s Folly filed the subject lawsuit.

The Supreme Court found that some facts weighed in favor of finding Braden’s Folly’s investment-backed expectation was reasonable and some facts weighed in favor of finding its expectation unreasonable. The Penn Central balancing test did not weigh in favor of either party, according to the Court.

Folly Beach and its witnesses set out the advantages to local beachfront property owners and the public at large of unwinding the super-beachfront development. The most important of the benefits to local property owners is the continued existence of federal funding for beach renourishment which in turn (1) protects A and B lots—particularly given that all the lots would be underwater if it were not for the continual renourishment; and (2) avoids property owners paying higher taxes if federal funding is extinguished.

The Court held that the merger ordinance was not a taking but responsible land use policy. Braden’s Folly retains, according to the Court, a near-full “bundle of sticks” incident to its ownership of the lots.

*South Carolina Supreme Court Opinion 28148 (April 5, 2023)

**Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104 (1978)

SC Supreme Court upholds Myrtle Beach’s “family friendly” zoning overlay district

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In Ani Creation, Inc. v. City of Myrtle Beach, * the South Carolina Supreme Court upheld an ordinance that imposed a zoning overlay district intended to bolster the “family friendly” nature of Myrtle Beach’s historic downtown area. The ordinance targeted smoke shops and tobacco stores and the merchandizing of tobacco paraphernalia, products containing CBD, and sexually oriented material.

The opinion begins, “The City of Myrtle Beach (the city) is a town economically driven and funded by tourism.” The facts indicate that the city received frequent criticism from tourists and residents that the proliferation of smoke shops and tobacco stores repelled families from the area. The city passed a comprehensive plan that aimed at increasing tourism and concluded that all businesses needed to encourage and support a “family beach image”.  The city passed an ordinance which created a zoning overlay district known as the Ocean Boulevard Entertainment Overlay District that encompassed the historic downtown area.

The prohibited uses in the district were declared immediately nonconforming when the ordinance was passed on August 14, 2018, but an amortization period was allowed which gave affected businesses until December 31, 2019, to cease the nonconforming portions of their businesses.

The zoning administrator issued citations to the nonconforming businesses. Nine of the 25 affected stories appealed to the Board of Zoning Appeals which found (1) it did not have jurisdiction to declare the ordinance unconstitutional; (2) it could not grant a use variance because it would allow the continuation of a use not otherwise allowed in the district; and (3) the businesses were engaged in one or more of the prohibited uses. On appeal, the circuit court affirmed the Board’s opinion, finding the appellants’ 25 grounds for challenging the ordinance meritless. The businesses appealed directly to the South Carolina Supreme Court.

The appellants raised a “host” of constitutional and procedural challenges, all of which fell on deaf ears at the Supreme Court. The Court held that the ordinance was a valid exercise of the city’s police powers. According to the Court, municipal governing bodies clothed with authority to determine residential and industrial districts are better qualified by their knowledge of the situation to act upon such matters than are the courts, and they will not be interfered with in the exercise of their police power to accomplish their desired end unless there is a pain violation of the constitutional rights of the citizens.

A comment on the Dirt Listserv said, “S. Carolina is OK with cancel culture after all.”  A store selling sexually oriented materials was removed from Garners Ferry Road in Columbia (about three miles from my house) using similar legal arguments. I was delighted to see that store torn down before I had to explain it to my grandchildren! But I do understand the “cancel culture” argument. What do you think?

*South Carolina Supreme Court Opinion 28151 (April 19, 2023)

Beware the Ides of March!

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We have three scary March 15 disciplinary cases

Three disciplinary cases* from March 15 of this year give us some timely reminders of activities we should avoid as lawyers.

Et tu, Brute?

The Brown case may be most on point for dirt lawyers. Attorney Brown practiced in family court. During testimony in a trial, a former client of Brown testified that her signature was not the signature reportedly sworn by a notary seal on the financial declaration filed with the court.

Here’s the scariest part of this story. After the trial, the family court judge reviewed several of Brown’s pending cases and found four documents attested to by Brown or her employee that appeared to be fraudulent. Brown self-reported to the ODC, acknowledged her misconduct, and signed an affidavit in mitigation. The affidavit stated that she had learned an important lesson, that she had attended several educational programs and had availed herself of Bar resources for new attorneys. She attested that she never intended to “mislead, misrepresent, or defraud anyone.” In other words, she was just trying to make things happen as quickly as possible for her clients.

The Court imposed a public reprimand and required Brown to pay the costs of the investigation and prosecution.

Dirt lawyers, no matter how much stress a closing creates, never, never fraudulently witness or notarize any document. You want to be able to testify in any deposition or court proceeding that you always appropriately monitored, witnessed, and notarized your clients’ documents. And it is not an excuse, as this case indicates that there was no intent to mislead, misrepresent or defraud anyone.  Take the time to handle documents appropriately every time.

The Williams case is a simple reminder to file and pay taxes. Williams failed to file and pay state income taxes for the 2015-2018 tax years. He was charged and arrested for this failure and timely self-reported his misconduct. He pled guilty, paid a fine, paid the taxes, and was sentenced to time served.

In mitigation, Williams stated that his mother’s mental and physical health began to deteriorate in 2012. He acted under  health care powers of attorney for both parents and cared for their needs as best he could while maintaining a busy law practice. He turned to alcohol “as an escape.” His mother died in 2018.  He stated he has been sober since 2019, has completed a six-week impatient treatment program, and regularly attends AA meetings. He also entered into a one-year monitoring contract with the Bar’s Lawyers Helping Lawyers program. He now serves as mentor to others in recovery.

The Court acknowledged its sympathy for Williams’ personal difficulties but imposed a definite suspension of ninety days.

Filing and paying taxes is one of those “black and white” functions that you cannot ignore. I once had a relatively wealthy real estate developer client who failed to file taxes for many years. That man, from a well-known and respected family, went to federal prison for several years. Paying taxes is not a step you can skip!

The Lynn case involved a disbarment for failure to hold unearned attorney’s fees in trust, for misappropriating client funds and for failing to keep clients informed. Read the opinion if you need a real Ides of March cautionary tale. One grave mistake Lynn made was failing to respond to the ODC’s investigation inquiries. Two things our Supreme Court takes very seriously are misappropriating funds and failing to cooperate with the ODC.

Let these sad facts be lessons to all of us! Just don’t do it!

*In the Matter of Brown, South Carolina Supreme Court Opinion 28139 (March 15, 2023), In the Matter of Lynn, South Carolina Supreme Court Opinion 28140 (March 15, 2023), In the Matter of Williams, South Carolina Supreme Court Opinion 28141 (March 15, 2023).

IRS provides safe harbor for conservation easements

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Be aware of the July 24, 2023 deadline!

When I was a title insurance underwriter, I helped many South Carolina lawyers close and insure their clients’ conservation easements, so I know many of these easements are recorded in the public records in South Carolina. I wanted to make sure all dirt lawyers who represent clients with conservation easements are aware of a development in this area of the law.

The Secure 2.0 Act of 2022 authorized the IRS to issue “safe harbor” language for conservation easements to cover situations where the easement is later extinguished because of unexpected circumstances or where a boundary line adjustment is needed. Using the correct “safe harbor” language will avoid the loss of the grantor’s charitable deduction.

Here is the important news: if your client has previously granted a conservation easement, the document can now be amended to add the “safe harbor” language. But the amendment must be recorded by July 24, 2023.

You can read the Treasury Notice here.

You can read the press release here.