Overview

1. BEACH ACCESS IN NORTH CAROLINAPublic Rights and Public ImplicationsKoenig v. Town of Kure BeachKristina TheodorsonFall 2005

2. Overview • Introduction to “beach access” • Rules on the books… • Common law approaches • Municipal tools • Koenig v. Town of Kure Beach • Related cases • Field Investigations • Discussion • Questions

3. Beach Access • Social, political and legal issue • Sensitive nature of the coastal environment • Oceanfront property owned by private individuals • Land below the mean high-tide line is public… • How do we get there?

4. Rules on the Books… • Local • State • Federal

5. Local • Coastal Area Management Act (CAMA) requires 20 coastal counties in North Carolina create Land Use Plans (LUPs) • The Division of Coastal Management (DCM) provides funding for local planning and management projects • Once a LUP is certified, it is used to make CAMA permit decisions and federal consistency determinations • Town of Kure Beach currently working on a Draft LUP; beach access is an important aspect…. “the Town will provide local access areas every quarter-mile to give neighborhood residents / pedestrians and bicyclists access to the beach” (Town of Kure Beach, undated, p. 90).

6. State • North Carolina Administrative Code (NCAC) contains guidelines… • 15A NCAC 7M Section .0300 – Shorefront Access Policies “The public has traditionally and customarily had access to enjoy and freely use the ocean beaches and estuarine and public trust waters of the coastal region for recreational purposes and the State has a responsibility to provide continuous access to these resources. It is the policy of the State to foster, improve, enhance and ensure optimum access to public beaches and waters of the 20 county coastal region” (NCAC, 2005). • 15A NCAC 7M Section .0303 – Guidelines for Public Access “Development shall not interfere with the public’s right of access to the waterfront where such access has been established through donation, acquisition, express or implied dedication or prescriptive easement” Public access projects should be consistent with the local government’s LUP; One “local access site” per block is encouraged (NCAC, 2005).

7. State • North Carolina General Statues contain laws for North Carolina… • Item 1-45.1 – No adverse possession of property subject to public trust rights • Item 146-6 – Title to land raised from navigable water “Title to real property held by the State and subject to public trust rights may not be acquired by adverse possession… public trust rights… include, but are not limited to, the right to navigate, swim, hunt, fish and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State’s ocean and estuarine beaches and public access to the beaches” (North Carolina General Statutes, 1985). “The title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State” (North Carolina General Statutes, 1959).

8. Federal • Federal cost share program for beach renourishment projects • Funding only provided for “public shores” • United States Army Corps of Engineers (USACE) Regulation No. 1165-2-130 – Water Resources Policies and Authorities – Federal Participation in Shore Protection “Reasonable public access must be provided in accordance with the recreational use objectives of the particular area. However, public use is construed to be effectively limited to within one-quarter mile from available points of public access to any particular shore. In the event public access points are not within one-half mile of each other, either an item of local cooperation specifying such a requirement and public use throughout the project life must be included in project recommendations or the cost sharing must be based on private use” (USACE, 1989).

9. Figure taken from USACE Evaluation Report and FONSI: Morehead City Harbor: Section 933

10. Common Law Approaches to Access • Public Trust Doctrine • Public Prescriptive Easements • Implied Dedication • Customary Use

11. Public Trust Doctrine • “Shorelands, bottomlands, tidelands, tidewaters, navigable freshwaters and the plant and animal life living in these waters are accorded special treatment under State and federal law” (Slade, 1990). • In North Carolina, areas seaward of the mean high-tide line are held in trust by the State for public benefit • “Expanded public trust doctrine” includes dry-sand rights • Public access to public trust lands is critical… in order for the doctrine to have substance, the public must be able to access these areas “Title to real property held by the State and subject to public trust rights may not be acquired by adverse possession… public trust rights… include, but are not limited to, the right to navigate, swim, hunt, fish and enjoy the State’s ocean estuarine beaches and public access to the beaches” (North Carolina General Statutes, 1985).

12. Public Prescriptive Easements • Five requirements for “prescriptive easement” 1. There must be actual use of the property by the general public; 2. The use must be continuous and uninterrupted for a set period; 3. The use must be open and fully visible to the owner; 4. The user must be claiming a right to use the property, and; 5. The use must be adverse to the property interests of the owner. • Key elements are “adverse interest” and “general public” • Owner retains “ownership”, but can do nothing to reduce the public’s established rights of use

13. Implied Dedication • Devotion of property to a public use by act of the owner, coupled with the intention that the property shall be accepted by the public, and used presently or in the future. • “Donative intent” has been interpreted broadly by the courts • The property owner may not revoke his dedication, and the public cannot lose its rights through non-use or adverse possession

14. Customary Use • Seven requirements for establishment of a “customary right” 1. The use must be ancient; 2. The use must be without interruption; 3. The use must have been peaceable and free from dispute; 4. The use must have been reasonable and in keeping with the character of the land; 5. There must be certainty as to what land was being used; 6. The use must have been obligatory for the upland landowners; 7. The use must not be inconsistent with public policy and other laws.

15. Municipal Tools to Acquire Public Access • Purchase of rights • Eminent domain • Construction regulation • Acquisition by gift • Condemnation of flood-prone areas

16. Purchase of Rights • Easements may be purchased through oceanfront property to allow the general public to access the beach Potential drawbacks… • Property is expensive • Limited to property available in the market • Must compete with other potential buyers

17. Eminent Domain • Government may acquire interests in privately held land in exchange for just compensation, regardless of the owner’s willingness to sell “nor shall private property be taken for public use, without just compensation” Fifth Amendment to the United States Constitution • Appropriate compensation must be provided • Easement must be put to “public use” Potential drawbacks… • Owner backlash

18. Construction Regulation • Secure public easements through oceanfront subdivisions by granting approval to the developer’s plans only when public beach access is provided • Require the extension of all roads and right-of-ways perpendicular to the beach down to the foreshore, and dedication of these roads to the public • Inexpensive to implement Potential drawbacks… • Applies only to land facing immediate development

19. Acquisition by Gift • Outright donations have played an important role in public resource development • Property owner may be provided tax savings as an incentive • Deed restrictions may be attached to the “gift” Potential drawbacks… • Willing donations may not fall in areas where public access is necessary

20. Condemnation of Flood Prone Areas • National Flood Insurance Act – federal government is authorized to purchase properties damaged substantially beyond repair, rather than pay the insured to reconstruct at the site • Sites with greater than 50% damage may be purchased • Federal dollars will not be repeatedly provided for construction of poorly sited homes • Risky sites may be more appropriate for public access Potential drawbacks… • Owner backlash

21. Koenig v. Town of Kure Beach

22. Koenig v. Town of Kure Beach

23. Koenig v. Town of Kure Beach

24. Koenig v. Town of Kure Beach

25. Koenig v. Town of Kure Beach • 1964 – First reference to Site being used as a public access point • 1995 – Russos purchase property • 1995 – Russos authorize a perpetual access easement required for beach renourishment projects • 1997 – Town of Kure Beach passes Ordinance 5-65 • 1999 – Russos begin construction at the Site • April 15, 2003 – Town of Kure Beach approves a resolution to construct a “local access site” at the Site • May 12, 2003 – CAMA approves a Minor Development permit for public dune walkover at the Site • Third-party hearing request filed by Russos – denied • July 30, 2003 – Russos file declaratory judgment and quite title action suit against the Town of Kure Beach in New Hanover County Superior Court • November 14, 2003 – Residents on Dow Avenue intervene • January 7, 2005 – New Hanover County Superior Court decides access easement at the Site does not belong to the Town of Kure Beach or to the general public • January 13, 2005 – Interveners file an appeal • Decision pending

26. Koenig v. Town of Kure Beach

28. Oshita v. Hill Andrews v. Country Club Hills Janicki v. Lorek Perley v. Langley Nudd v. Hobbs Elmer v. Rodgers Related Cases

29. Oshita v. Hill • 65 N.C. App. 326, 308 S.E.2d 923 (1983) • Prescriptive easement through a tract of land used almost daily as a driveway from 1932 through 1974 • Jury recognized plaintiff’s easement Koenig Application • In this case, the prescriptive easement was established by one individual, rather than the general public • The easement was the primary ingress and egress to the plaintiff’s property

30. Andrews v. Country Club Hills • 18 N.C. App. 6, 195 S.E.2d 584 (1973) • Defendant wished to withdraw areas in Country Club Hills subdivision from public use under G.S. 136-96 • Areas in question included Hyde Park and an unnamed street • Hyde Park could not be withdrawn from public use; the unnamed street could be withdrawn, if it is not necessary to “afford convenient ingress and egress to and from the park” Koenig Application • Public rights cannot be withdrawn from land “necessary to afford convenient ingress or egress to any lot or parcel sold or conveyed by the dedicator of such street or highway” • Can this be applied based upon Russos “Perpetual Easement” for beach renourishment?

31. Janicki v. Lorek • 255 N.C. 53; 120 S.E.2d 413 (1961) • Street dedicated in 1906, but had not been used by the general public until 1954 • Court decides since the offer of the land to the general public was not accepted within 15 years of dedication, the public lost their rights in the street Koenig Application • Unclear if the easement was “offered” to the general public, but it had certainly been used • This use should qualify as an “acceptance” of any donation

32. Perley v. Langley • 7 N.H. 233 (1834) • Perhaps the earliest American case dealing with customary rights • Defendant claims right to take sand from plaintiff’s property to mix with lime for the purpose of making mortar; right of custom • Court decides easement through land could be held as a right of custom, but no right to remove profit from the land of another can be held in custom Koenig Application • No profit is being taken from the Plaintiffs

33. Nudd v. Hobbs • 17 N.H. 524 (1845) • Defendant claims that right-of-way established through the plaintiff’s property to access the shores of the Atlantic ocean for the purposes of collecting sea-weed and rock-weed • Court decides that easement is established, but any sea-weed or rock-weed belongs to the owner of the land on which they are deposited Koenig Application • Easement may be established by customary use of private land to reach the seashore

34. Elmer v. Rodgers • 106 N.H. 512; 214 A.2d 750 (1965) • For over twenty years the public had used a right-of-way across the defendants’ property to reach the shores of Mirror Lake • Court found that the general public had continuously, openly, without interruption, under a claim of right, and without the permission of the owners, used the right-of-way; therefore, the public acquired a right-of-way for these purposes by prescription Koenig Application • The use of the access point through the dunes by the general public was to such an extent that a well-worn path was established; the owners of the property should have known that the right was being exercised without regard to their consent

35. Application of Common Law Principles • Public Trust Doctrine • Public Prescriptive Easement Rights • Implied Dedication • Customary Use • Municipal Tools

36. Areas of Interest • Distance Measurements • Kure Beach Permitting Process • Dow Chemical Easement • Historic Aerial Photographs

37. Distance Measurements

38. Distance Measurements

39. Kure Beach Permitting Process • Both CAMA Permit and Kure Beach Building Permit required for construction of a dune walkover • Not likely that CAMA would have issued a permit for construction through a public access easement

40. Dow Chemical Easement

41. Historic Aerial Photographs

42. Historic Aerial Photographs

43. Historic Aerial Photographs

44. Historic Aerial Photographs

45. Historic Aerial Photographs

46. Historic Aerial Photographs

47. Historic Aerial Photographs

48. Historic Aerial Photographs

49. Discussion • Public should have established rights at Site based on 34-year (minimum) use • Municipalities should take advantage of every opportunity when the citizens offer to bear the costs of construction for dune walkovers • Town of Kure Beach should plan carefully in the future… • Oceanfront property owners are acting in their own best interest when they allow public access through their property • Maintaining public access should be a high priority for the Town to appease both citizens and tourists in Kure Beach • Koenig v. Town of Kure Beach may set a precedent – public trust doctrine exists because courts have enforced it

50. Questions ???