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Issue  230  Article  370
Published:  8/1/2016

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Beach above Mean High Water Subject to Public Trust Doctrine
Chris Burti, Vice President and Senior Legal Counsel

In Nies v Town of Emerald Isle (COA15-16) 11/17/2015 the Court of Appeals defines the nature of public trust rights in private property consisting of the dry sand beaches above the mean high tide line and a city's right to regulate the use of that property. North Carolina's ocean beaches are made up of different sections, the legal delineation of which are important to this decision and is discussed extensively therein. The "foreshore," or "wet sand beach," is the section abutting the ocean and temporarily covered by water resulting from the regular tidal cycle. The landward boundary of the foreshore is the mean high water mark. This is not defined by statute in North Carolina, but in Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 177 S.E.2d 513, (1970) our Supreme Court cited to the United States Supreme Court opinion where "mean high tide" was defined as "the average of all high tides over a period of 18.6 years" Borax Consol. v. City of Los Angeles, 2 6 U.S. 10, 26 - 27, 80 L. Ed., 20 (135). (fn. "This time period is used because there is '"'a periodic variation in the rise of water above sea level having a period of 18.6 years [.]'"' Id.")

The "dry sand beach" is the next landward section of the public beach running from the mean high water mark and continuing to the high water mark of the storm tide. The landward boundary of the dry sand beach will generally be the "foot of the most seaward dunes, if dunes are present; the regular natural vegetation line, if natural vegetation is present; or the storm debris line, which indicates the highest regular point on the beach where debris from the ocean is deposited at storm tide. Travelling further away from the ocean past the dry sand beach one generally encounters dunes, vegetation, or some other landscape that is not regularly submerged beneath the salt water s of the ocean."

The seaward boundary of private beach ownership in North Carolina as cited in the opinion is set by statute in N.C.G.S. Section 77-20:

(a) The seaward boundary of all property within the State of North Carolina, not owned by the State, which adjoins the ocean, is the mean high water mark. Provided, that this section shall not apply where title below the mean high water mark is or has been specifically granted by the State.

(b) Notwithstanding any other provision of law, no agency shall issue any rule or regulation which adopts as the seaward boundary of privately owned property any line other than the mean high water mark. The mean high water mark also shall be used as the seaward boundary for determining the area of any property when such determination is necessary to the application of any rule or regulation issued by any agency.

These natural boundaries continually change through the effect of wind and water and the acts of man. When public funds are used to raise such land above the mean high water mark, the State may acquire ownership of public trust dry sand ocean beach pursuant to N.C.G.S. Section 146 - 6 (f) (2013):

Notwithstanding the other provisions of this section, 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. Title to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor. All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State . (emphasis added in the quotation in the Court's opinion).

The Town engaged in a project to control or remediate erosion of the Town's beaches in 2003 by filling with dredged sand resulting in an extension of the dry sand beach from Plaintiffs' mean high water mark property line to a new mean high water mark located seaward of their property line. This resulted in the State now owning the dry sand beach between Plaintiffs' existing property line and the new mean high water mark.

Because the Town regulated vehicular traffic in the dry sand portion of the beach all the way up to the dune line, the plaintiffs alleged a violation of the Takings Clause of the Fifth Amendment of the United States Constitution. The Town was granted summary judgment by the trial court and the plaintiffs' action was dismissed resulting in this appeal which the Court of Appeals affirmed.

Plaintiffs first argued that privately owned dry sand beaches in North Carolina are not subject to the public trust doctrine. The court citing language in cases such as Gwathmey v. State of North Carolina, 342 N.C. 287, 464 S.E.2d 674, (1995), Fabrikant v. Currituck Cty., 174 N.C. App. 30, 621 S.E.2d 19 (2005), Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 303, 177 S.E.2d 513, 516 (1970), N.C.G.S. Section 113-131 (e) (2013), N.C.G.S. Section 1-45.1, N.C.G.S. Section 113A-134.1(b), N.C.G.S. Section 77-20(e) and N.C.G.S. Section 4-1; and adopting a doctrine that defines the dry sand beach as public trust lands, ruled otherwise.

As to the taking issue the Court noted that the North Carolina Supreme Court disavowed what it declared to be dicta in Concerned Citizens v. Holden Beach Enterprises, 95 N.C. App. 38, 381 S.E.2d 810, (1989) that suggested that the public trust rights of North Carolina beaches did not carry with them a right of access absent compensation to the affected owner. There are limits to these rights and the limits of the public's right to use the public trust dry sand beaches are established through appropriate use of the State's police power. The opinion proceeds to determine that the Town, pursuant to public trust rights or otherwise, may enforce ordinances reserving unimpeded access over portions of Plaintiffs' dry sand beach without compensating Plaintiffs. As the plaintiffs have never had the right to exclude public traffic, whether pedestrian or vehicular, from the public trust dry sand beach portions of the Property and the Town has the authority to both ensure public access to its ocean beaches, and to impose appropriate regulations pursuant to its police power, such regulation if reasonable does not constitute a taking.

Citing the North Carolina Supreme Court:

"The question of what constitutes a taking is often interwoven with the question of whether a particular act is an exercise of the police power or the power of eminent domain. If the act is a proper exercise of the police power, the constitutional provision that private property shall not be taken for public use, unless compensation is made, is not applicable." "The state must compensate for property rights taken by eminent domain; damages resulting from the exercise of the police power are noncompensable." Barnes v. Highway Commission, 257 N.C. 507, 514, 126 S.E.2d 732, 737 - 38 (1962) (citations omitted).

The court went on to "note that our General Assembly has addressed the specific issue of regulating beach equipment on North Carolina ocean beaches in legislation that became effective on 23 August 2013. N.C. Gen. Stat. 160A-205, entitled "Cities enforce ordinances within public trust areas,"

(a) Notwithstanding the provisions of G.S. 113-131 or any other provision of law, a city may, by ordinance, define, prohibit, regulate, or abate acts, omissions, or conditions upon the State's ocean beaches and prevent or abate any unreasonable restriction of the public's rights to use the State's ocean beaches. In addition, a city may, in the interest of promoting the health, safety, and welfare of the public, regulate, restrict, or prohibit the placement, maintenance, location, or use of equipment, personal property, or debris upon the State's ocean beaches. A city may enforce any ordinance adopted pursuant to this section or any other provision of law upon the State's ocean beaches located within or adjacent to the city's jurisdictional boundaries to the same extent that a city may enforce ordinances within the city's jurisdictional boundaries. A city may enforce an ordinance adopted pursuant to this section by any remedy provided for in G.S. 160A-175. For purposes of this section, the term "ocean beaches" has the same meaning as in G.S. 77-20(e).

(b) Nothing in this section shall be construed to (i) limit the authority of the State or any State agency to regulate the State's ocean beaches as authorized by G.S. 113-131, or common law as interpreted and applied by the courts of this State; (ii) limit any other authority granted to cities by the State to regulate the State's ocean beaches; (iii) deny the existence of the authority recognized in this section prior to the date this section becomes effective; (iv) impair the right of the people of this State to the customary free use and enjoyment of the State's ocean beaches, which rights remain reserved to the people of this State as provided in G.S. 77-20(d); (v) change or modify the riparian, littoral, or other ownership rights of owners of property bounded by the Atlantic Ocean; or (vi) apply to the removal of permanent residential or commercial structures and appurtenances thereto from the State's ocean beaches.

The opinion is lengthy, replete with citation to U.S. Supreme Court cases, North Carolina Supreme Court cases and North Carolina General Statutes and it evidences a philosophical shift in the Legislature and the courts tending to broaden the imposition of public trust rights over private property rights in coastal resources. One can only speculate as to the limits of this shift.

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