• SC Court of Appeals Rules No Compensable Taking
  • January 3, 2017 | Author: R. Bruce Wallace
  • Law Firm: Nexsen Pruet, LLC - Charleston Office
  • The South Carolina Supreme Court, in Carolina Conv. Stores v. City of Spartanburg, Op. No. 27663 (S.C.Sup.Ct. filed August 31, 2016) (Shearouse Adv.Sh. No. 35 at 12), tackled the issue of whether a city’s SWAT response to a hostage situation constitutes inverse condemnation of a landowner’s convenience store.

    An armed perpetrator fled from police after being stopped, entered Carolina Convenience Store in Spartanburg, and took the store clerk hostage. Following negotiations, the City of Spartanburg’s police fired tear gas and pepper spray into the convenience store. Id. at 13. After a twelve-hour hostage standoff, the police breached the building with a bulldozer, severely damaging the property. Later, the landowner refused to tear down the damaged building, and the City of Spartanburg demolished it. Id.

    The landowner challenged the City’s initial attack on the convenience store, but not the later demolition, as an example of inverse condemnation. As the Court noted, “[i]nverse condemnation may result either from the government's physical appropriation of private property or from government-imposed limitations on the use of private property. Id. at 14 (quoting Byrd v. City of Hartsville, 365 S.C. 650, 656, 620 S.E.2d 76, 79 (2005)). After reciting the elements necessary for a landowner to prove inverse condemnation, the Court turned to the merits of the case.

    The Supreme Court noted that whether a police force’s hostage resolution constituted a taking was a novel question in South Carolina. Id. at 15, n. 3. So in deciding the case, the Court focused on the narrow question of whether a taking had occurred at all. Id. at 15. In the court below, the Court of Appeals had held there was no taking because the police did not physically take the landowner’s convenience store for a public purpose. Id. at 16.

    The Supreme Court answered the question much more simply. “[W]e simply hold the damage to [the landowner’s] property, during the police department’s hostage rescue effort did not constitute a taking as contemplated by the South Carolina Constitution.” Id.

    The Supreme Court also corrected the Court of Appeals broad holding that no takings result from legitimate exercise of police powers. Instead, the Court recognized “that an action for inverse condemnation may lie even when a governmental entity takes property pursuant to ‘legitimate exercise of its police power.” Id. The Court acknowledged this distinction as part of its “modern jurisprudence”. And the Court’s modern jurisprudence has recently acknowledged “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Dunes W. Golf Club, LLC v. Town of Mount Pleasant, 401 S.C. 280, 312, 737 S.E.2d 601, 618 (2013). “The rub, of course, has been-and remains-how to discern how far is ‘too far.’” Id. at 312-13, 737 S.E.2d at 618. So, while SWAT team hostage rescues are not takings, the courts are still open to consider zoning and other regulatory takings.