Houses on the Beach and the Public Trust

Reprinted from The Outer Banks Voice

NAGS HEAD — A recent state Supreme Court decision to dismiss an appeal by Nags Head has left the town and other coastal communities scratching their heads over regulating activity on public trust beaches.

For over two years, the town has battled property owners in South Nags Head, where erosion had placed homes in the public trust area between mean high water and the toe of the dune line.

Everyone is allowed to use the public trust area, even if it is privately owned. It is similar to a public right-of-way.

Nags Head has long contended that the houses pose a threat to public safety and if they eventually fall into the ocean, debris will endanger swimmers and other property.

A house owned by Cherry Inc. that was severely damaged by a 2009 nor’easter was at the center of the town’s court actions.

A Superior Court judge agreed that the town had the authority to declare the structure a nuisance and order it to be removed or torn down.

In February, the North Carolina Court of Appeals overturned the Superior Court decision, declaring the state, not the town, had jurisdiction over public trust beaches.

The decision by the Supreme Court leaves the Appeals Court decision intact.

“We believe the N.C. Supreme Court made a mistake in not hearing our case,” said Nags Head Mayor Bob Oakes.

“They essentially said the State of North Carolina is the only entity that can take action to protect the public’s rights in the public trust, which includes our public ocean beaches.”

The court decisions were in opposition to the manner most coastal communities viewed their powers within public trust beaches.

“The problem is in our back yard, and we feel that the local government is the right place to address the issue,” said Oakes.   

“The decision means that we have to rely on the state to keep our beaches clean and usable by the public.”

Ike McCree, Currituck County’s attorney also expressed concern.

“I do not believe that the court’s decision prevents a county or town from regulating land use, driving on the beach or other general police power ordinances specifically authorized by statute,” McCree said.

“What is concerning is that the court apparently holds that should someone, for example, place a fence or other obstruction from the toe of a dune to the water (the public trust area) the local government has no authority to seek removal of the obstruction to allow for the public’s access to the public trust area.

“In Currituck, there is a house north of Corolla that the county now has no authority to seek removal from the public trust area despite at times of high tide access around the house is blocked.”

“Now coastal towns and counties will have to look to the state for assistance with these issues.”

Tim Dodge, a staff attorney for the N.C. General Assembly’s Office of Legislative Services, expressed the opinion in a 2010 letter that a local government could order the removal of a structure within a public trust beach “under their general police power and also possibly under their emergency powers to abate nuisances.”

An article in Legal Tides magazine, a collaboration of N.C. Sea Grant, the UNC School of Law and the UNC Department of City and Regional Planning, expressed surprise at the appeals court decision.

In that article, Joseph Kelo of the UNC School of Law and co-director of the N.C. Coastal Resources Law, Planning and Policy Center said:

“For coastal municipalities, the critical issue raised in this litigation was whether a municipality had the legal right to enforce the State’s public trust doctrine. The surprising holding of the Court of Appeals was that a municipality has no such right under existing State law.

“According to the Court of Appeals, only the State, acting through the North Carolina Attorney General, can bring an action af?rmatively enforcing the State’s public trust rights. The motivating factor underlying the court’s decision seems to be that the structures ended up where they did through erosion and not through any af?rmative act of the owners.

“What the court failed to take into account, however, is that anyone who builds structures along our highly dynamic coast is taking exactly the risk that these owners took/”

“The town is trying its best to maintain a public beach that the public can use and enjoy without the hazard of homes in disrepair that block a simple walk down the beach,” Oakes said.