North Carolina Coastal Land Use Spring 2012 Newsletter Practice Group: Real Estate Land Use, Planning and Court Of Appeals Limits Local Control Over Beaches Zoning By William J. Brian, Jr. In an important decision for coastal property owners, Town of Nags Head v. Cherry, Inc., No. COA11-931, the North Carolina Court of Appeals held that the Town of Nags Head does not have standing to enforce the State’s rights in the area of the beach known as the Public Trust. In that case, one in a series being pursued by the Town against the owners of beachfront property, the Town took the position that it could enact and enforce an ordinance which makes all houses and other structures located on the dry sand area of the beach (i.e., that located between the first line of stable vegetation and the mean high water mark) nuisances per se, and compel them to be demolished without paying any just compensation to their owners. The Town takes a broad view of the concept of the public trust, the basis of which is that the State owns the land from the mean high water mark to the open ocean and administers that land in trust for the benefit of the public. Although this doctrine is well-settled, the Town and certain academic commentators have put forth the proposition that in addition to this area seaward of the mean high water mark (i.e., the public trust area, or the wet sand beach), the dry sand beach also is burdened with certain “public trust rights” of general public access, and that any structure located in this area by definition interferes with those rights of access and therefore is a public nuisance. Although (astonishingly) a trial court judge agreed with the Town, the Court of Appeals unanimously disagreed and made it clear that whatever public trust rights may exist on the dry sand area of the beach, those rights belong to the State of North Carolina and only can be enforced by the State. Therefore, the Town lacks standing to enact or enforce the ordinance in question, and the trial court cannot enforce an order to remove a structure solely due to its location on the dry sand beach. Importantly, the Court of Appeals did not elaborate on the existence or scope of the “public trust rights” the State may have on the dry sand beach, but noted only that whatever they may be, they are not an issue for the Town to be concerned with. In doing so, the Court once again put the issue of what – if anything – that is to be done with beachfront structures that have migrated onto the dry sand beach due to erosion, clearly into the lap of the State. Although the substance of the decision is not surprising given the prior existing law, it likely will bring no pleasure to the State Department of Environment and Natural Resources (“DENR”) and the Division of Coastal Management (“DCM”) , both of which have so far been unable to decide what to do about coastal erosion issues, including sandbags and other similar erosion control devices. Cherry Inc., makes it abundantly clear that those issues belong exclusively to DENR and DCM, and therefore that they will have the shoulder the burden of a solution on their own.
North Carolina Coastal Land Use Newsletter Update on the Use of Sandbags along North Carolina’s Coast By Mack Paul Permits for approximately 370 sandbag structures in North Carolina expired in May 2008. Since that time, the Division of Coastal Management (DCM) and Coastal Resources Commission (CRC) have struggled with how best to respond. After sending out notices notifying property owners of the impending deadline, state officials realized enforcement would pose a significant challenge to resources. Consequently, DCM spent many months evaluating properties with sandbags and prioritizing those most deserving of removal. Property owners responded by introducing rulemaking and gaining passage of a moratorium on removal during 2009-2010. The CRC adopted rules providing some relief for sandbags in inlet areas - - extending the timeframe from 2 years to 8 years. However, the CRC directed staff to commence enforcement according to the priority list once the moratorium expired in 2010. At the same time, the CRC initiated a stakeholder process, engaging property owners, coastal scientists, local officials and DCM staff to study different approaches on sandbags. The stakeholder process revealed that sandbags are reflective of much larger policy challenges at the coast. In particular, sandbags exist to protect structures that represent significant investment and tax base. Only when these structures are under imminent threat of erosion do sandbags get installed. When structures remain under threat of erosion for prolonged periods, sandbags become a focal point of public frustration. There are many reasons -- some complex -- why these structures remain in place for such long periods of time. The primary reasons are twofold: first, national flood insurance policy encourages property owners to fortify their structure against loss even if imminently threatened. Instead of moving the structure away from the erosion, property owners invest in sandbags, "sister piles" and other techniques until the structure is lost in a storm -- the only way the owner can recover fully under the program. Second, it takes most communities many years to implement projects to address erosion. The Town of Nags Head's nourishment project implemented in 2011 offers an example. Many properties in South Nags Head have had sandbags for 10 or more years. Local officials have actively sought to pass ordinances and take other steps to remove the structures. The media often focused on South Nags Head to show why sandbags are a problem in North Carolina. Finally, relief came in the form of a nourishment project completed this year. Many of these properties now have expansive beaches and are contributing again to the local tax base. Despite the earlier complaints, the sandbags performed well and saved a number of structures from loss. The stakeholder process produced a range of recommendations for the CRC. However, the CRC did not discuss them extensively. Ultimately, the CRC supported a staff recommendation to extend the time limit for sandbags to 8 years whether in an inlet area or not. Further, the proposed rules would afford 8 years for sandbags protecting properties in a community pursuing a terminal groin. Finally, the rules would allow multiple sandbag permits. Therefore, a property that receives nourishment can install sandbags again in the future if the erosion returns prior to another nourishment project. It will take a number of months for the rulemaking process to unfold. One can question whether it makes sense to have fixed timeframes given the history of sandbag enforcement in North Carolina. However, to date, the CRC has been unwilling to eliminate timeframes altogether or to allow 2
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