When the Coastal Educational Foundation filed a lawsuit against one of its own benefactors in December, the foundation’s case arrived just in time to block what would have been the first step in the larger effort to preserve Waties Island for the benefit of the public.
The 2.5-mile island just north of Cherry Grove is the only undeveloped barrier island in Horry County. It starts a string of islands that run up through North Carolina. For generations, the island was privately owned by the Tilghman family.
“I was shocked and outraged that Coastal Educational Foundation would file a lawsuit against one of its major donors,” said Olivia Boyce-Abel in an email. “Our family (my three siblings and myself) donated $10 million worth of land from our mother’s estate to Coastal Educational Foundation, a large part of which includes [Waties] Island. Our aunt donated an additional $500,000 to the foundation as well.”
Boyce-Abel, who has title to around 260 acres of land in two parcels on the northern end of Waties Island and the marsh behind it, was prepared to close on a deal with the Open Space Institute so the conservation group could hold her land until the S.C. Department of Natural Resources could acquire it for a new natural heritage preserve.
But just before the deal went through, Coastal Carolina University’s non-profit arm filed a complaint disputing Boyce-Abel’s title to the land on which she’s been paying taxes for decades. The foundation had never before disputed her title.
“We were less than a week from closing for a conservation outcome when CEF filed its lawsuit saying they had claim to the land which I have paid taxes on and camped on since it became mine over 25 years ago,” Boyce-Abel added. “I find it surprising that a foundation would pursue actions that might put at risk future donations from other donors.”
SCDNR spokesperson David Lucas confirmed that DNR had discussed turning the property into a heritage preserve with Boyce-Abel and the Open Space Institute.
“The SCDNR discussed purchasing Mrs. Boyce’s property due to the high ecological values the property holds,” Lucas said in an email. “Public use is allowed on various heritage preserves in a way that is compatible to prevent harm to both the natural and cultural resources the SCDNR strives to protect, conserve and manage.”
Lucas said the Heritage Trust Advisory Board had not yet approved the property acquisition. DNR staff had planned to submit the property to the board for consideration but decided to postpone due to the lawsuit. Even after a staff recommendation to the Heritage Trust Advisory Board, the property acquisition would have to be approved by the full DNR board as well.
If that land became a heritage preserve, it would be state-owned and open to the public, but without the infrastructure that comes with state parks like Huntington Beach in Murrells Inlet.
“What I can tell you is that heritage preserve property is the highest and greatest protection that land can have under state law in South Carolina,” said South Carolina Environmental Law Project Executive Director Amy Armstrong, who’s representing Boyce-Abel in the suit.
“But it also means that it’s a public resource, because the state then owns it as a heritage preserve,” Armstrong added. “I think there’s tremendous value to the citizens of South Carolina to have one of our last undeveloped barrier islands as a heritage preserve. If that would end up happening, that would be really quite phenomenal.”
Thanks to Boyce-Abel’s family, Coastal’s foundation already has more than 1,000 acres of property on the lower third of the Island, marsh and Little River Neck uplands that are protected by a perpetual conservation easement. Boyce-Abel and her three siblings donated the land to Coastal after the death of their mother, Anne Tilghman Boyce. The siblings’ aunt, Kitty Lou Tilghman, also donated $500,000 to the foundation, Boyce-Abel said. The land is primarily used for student education and research.
“Our mother had always wanted all of the Little River land, not just the island but the mainland behind it, preserved,” Boyce-Abel added. “She was always interested in preserving the place for nature and animals and humans; all of God’s creatures as she called them. That was her dying wish. And so we were carrying forward her intent with that donation.”
The land the foundation is disputing can’t be developed either.
In 1979, Horry County condemned a 50-acre tract of the Tilghman family’s land on the north end of the island in order to construct a jetty as part of the Little River Stabilization Project. The county held title to the land until it donated the tract to the foundation in 2017, with deed restrictions preventing development, said Armstrong.
That tract of land is surrounded on all sides by land claimed by Boyce-Abel. Coastal’s foundation contends that 108 acres of accreted land on the southern border of the 50 acres actually belongs to them, arguing in the lawsuit that the land has accreted along the border of its property. That accreted land is seaward of the island's beachfront jurisdictional lines, said Armstrong, meaning the accreted land also can't be developed.
As evidence of their ownership claim, the foundation’s complaint cites a 1984 South Carolina Court of Appeals decision stating the Tilghman family had no legal interest in 39 acres of land on the northeast end of the island that was adjacent to the 50-acre tract. That property once belonged to the family, was submerged over time, and was then raised above sea level during construction of the jetty, according to the court decision. The family wanted compensation for the land in question, but the trial judge and appeals court ruled against them.
While the foundation argues that the accreted land in question belongs to them, Armstrong said their argument isn’t accurate because South Carolina law stipulates that accreted land belongs to the state, and she filed a motion last week to dismiss the foundation's suit, citing that law.
But for the particular parcel of property in question, Armstrong said Boyce-Abel is the rightful owner, pointing to her title, tax payments and her property line.
Following Anne Tilghman Boyce’s death in 1988, her land was divided up amongst the family, including Olvia Boyce-Abel and her siblings.
“The boundaries of her property include that accreted land,” Armstrong explained. “So she’s been paying taxes according to the property boundaries of her land, which have not changed. The accretion is within the boundaries of her property.”
Given that the land in question can't be developed, Armstrong is perplexed about why the foundation filed the lawsuit.
"We’ve been trying to understand the reasons why, but haven’t seen or heard what the foundation is trying to get out of this," she said.
Tony Cox, chairman of the foundation’s board of directors, did not respond to a request for comment. The foundation sent a statement saying it doesn’t comment on pending legal matters.
Olivia Boyce-Abel’s brother, Merrill Boyce, also serves on the board of directors for the foundation. Asked if he agreed with the suit, Merrill Boyce cited the appellate court decision.
“The apparent issue was solved in a 1984 legal opinion which shouldn’t need further clarification,” he said in an email. Olivia Boyce-Abel declined to comment on her brother’s involvement.
The island’s future
Neither Boyce-Abel nor her attorney could explain the foundation’s motivation for contesting the ownership of the property in December, right before the land could have been acquired for conservation purposes.
“It’s been undisputed until the foundation brought this action that has really effectively been the one single thing that has stood in the way of a long-term permanent protection for part of Waties Island,” Armstrong said.
Protecting the island is an important goal for Boyce-Abel. While she doesn’t intend to develop her land, and Coastal’s land on the lower third is already under a conservation easement, some parcels on the island, in theory, could be developed.
Virginia-based Riverstone Properties owns more than 240 acres on the island and adjacent marsh, and close to 800 acres in the upland area behind the island. Riverstone also owns resorts in Kiawah Island and Hilton Head.
“There are some major obstacles that they would need to overcome in order to do a development [on the island],” Armstrong said. “There are a couple of things that are relevant; one is that the property that they own isn’t deed restricted. There aren’t any restrictive covenants or any protections on the land that they own, so that would mean they’re not prevented by deed from undertaking some sort of development. There are other limitations; problems with access. I think there’s a pretty serious question about whether it could occur or not. They’ve got some significant hurdles if that was to happen.”
While Olivia Boyce-Abel would like her parcel of land to become a heritage preserve because of the level of protection that comes with it, the city of North Myrtle Beach and the South Carolina Department of Parks, Recreation and Tourism have been eyeing the island for a state park.
“The governor, South Carolina Parks and Recreation, Duane Parrish; they all love Waties Island and would love to see it become a state park, and so would the city,” said North Myrtle Beach Mayor Marilyn Hatley. “It would be a golden jewel for our state of South Carolina to have Waties Island as a state park.”
Both a state park and heritage preserve would preserve the land for public use, but a state park could have infrastructure like parking lots, campsites, and water and electricity. State parks are managed by SCPRT and are designed to provide recreation opportunities while heritage preserves are managed by DNR and are designed to preserve unique or important habitats, and natural or cultural resources.
In late 2019, Director of State Parks Paul McCormack discussed with Boyce-Abel the possibility of the island becoming a state park, but with minimal impact.
“Whatever the future of the property is, we believe we are all in agreement that the island proper, across the causeway, is an incredible part of the property that should remain in a natural state with minimal man-made impact,” McCormack wrote to Olivia Boyce-Abel in November 2019. “[SCPRT Director] Duane [Parrish] has had the chance to discuss thoughts on the island with Nate Berry at Open Space Institute and in an effort not to muddy the waters on what could be, we would prefer to let him take lead on the project at this point.”
Boyce-Abel responded that she was glad SCPRT agreed the island should remain as natural as possible, and added that “Nate is a good strategist and is a good negotiator with Riverstone. He does technically represent OSI, not us.”
Neither OSI nor Riverstone responded to requests for comment. Boyce-Abel also declined to comment on OSI’s negotiation with Riverstone.
“I don’t know the details of what would happen there,” she added.
Lucas said the Riverstone property “has also been of interest for conservation, and SCDNR is aware of OSI’s continued communications to target a conservation outcome for Waties Island.”
SCPRT Director of Corporate Communications Samantha Queen said the agency was still interested in turning parts of the island into a state park, with any additional infrastructure based on “the natural and cultural resources in the area and what is appropriate for the environment. As a barrier island, the ever-changing environment at Waties Island would dictate what infrastructure is feasible and a good fit for the location.”
Queen cited St. Phillips Island at Hunting Island State Park as an example of a barrier island in the state parks family with limited infrastructure. She said if Waties Island did not become a state park, it is not within her agency’s purview to have a position on future conservation efforts.
Boyce-Abel said she would rather not see the island become a state park when there are other alternatives, but added, “I think S.C. state parks understands our concerns about the fragility of the island; that it really is a very special place and I appreciate that.”
Lucas said land acquired for a heritage preserve would be separate from any state park.
“SCDNR staff have visited the Waties Island property and discussed the potential of the property becoming a heritage preserve with Mrs. Olivia Boyce and Open Space Institute,” Lucas added. “SCDNR did not intend for the potential acquisition of Mrs. Boyce’s property to be utilized in any way for a state park.”
Boyce-Abel had hoped that putting her piece of land in the hands of DNR would have set a tone for the rest of the island’s conservation instead of development.
“The value of the land is much greater on the open market,” she said. “I’ve chosen not to sell to a developer since I feel this legacy land is ideally conserved for the benefit of all of South Carolina.”
But for her property, that goal is out of reach as long as the ownership dispute is pending.
“Olivia wants to resolve this issue with the foundation as expeditiously as possible,” said Armstrong. “As long as this lawsuit is out there, that can’t happen. So getting to the bottom of what motivated the lawsuit in addition to figuring out how we can resolve it is a key priority.”