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Issue  274  Article  428
Published:  8/1/2021

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Hovey v. Sand Dollar Shores HOA Assn. Inc. (20-423) 4/6/2021
Elements of Public Dedication of Beach Access

Chris Burti, Vice President and Senior Legal Counsel

This appeal arises from an order of summary judgment in favor of two Town of Duck residents who do not own oceanfront property and who assert a public right of access across a pedestrian walkway affording beach access from a Town of Duck public street to members of the defendant Sand Dollar Shores Homeowner's Association. The order declared that the walkway maintained by and titled to Defendant has been dedicated to the public.

The developer of Sand Dollar Shores recorded a plat of the subdivision in 1981 before the Town of Duck was incorporated. The plat discloses a subdivision of 42 residential lots along Seabreeze Drive, a road leading from State Route 1200 and terminating at a double cul-de-sac near the Atlantic Ocean. The plat map also shows an

"eight-foot-wide pedestrian beach access easement (the "Easement") running from the double cul-de-sac to the beach between lots 2 and 3:

The plat map includes a "certificate of dedication," which provides that the developer

"hereby . . . dedicate[s] all roads, alleys, walks, parks, and other sites to public or private use as noted." The certification further states that "the streets and roads in this subdivision are dedicated to public use." Nothing on the face of the plat map notes the Easement as for either public or private use.

The plat map was approved for recordation by Dare County, which, per a certificate of approval and acceptance of dedication on the face of the plat map, "accepted the dedication of roads, easements, right-of-way, public parks, and other sites for public purposes as shown hereon."

Shortly afterward, the developer recorded restrictive covenants that included a statement that the easement at issue was for the sole use of homeowners within the subdivision and their guests, prohibiting its use by anyone else and warning that such use may result in prosecution for trespassing. The defendant HOA was established years later after which the developer deeded it the beach access and upon which it assumed the exclusive responsibility for the ownership and maintenance of the subject easement and has continued to maintain it ever since.

The plaintiffs own a house across the highway from Sand Dollar Shores operated as a vacation rental during the summer months as well as a beach equipment rental business serving their renters and other vacationers. Plaintiffs and their customers used the subdivision's beach access to reach the ocean. In 2015, the defendant amended its restrictive covenants to provide, among other things, that the Easement was dedicated for the use of its members only, the plaintiffs continued to use the Easement and, in April 2016, the defendant's attorney wrote a letter to plaintiffs stating that they would be held liable if they and their tenants did not stop using the easement. This led to the plaintiffs' rental management company cancelling its property management contract with them and resulting in the plaintiffs filing declaratory judgment actions against the defendant HOA and the Town of Duck, requesting that the trial court declare the Easement had been dedicated to the public. The opinion states:

The Town of Duck did not file a responsive pleading, but the city manager filed an affidavit attesting that the Town had "no intention of arresting the Plaintiffs for use of any of the Accesses absent a Court decision settling any civil disputes arising between the Plaintiffs and the underlying owners of the Accesses." Plaintiffs voluntarily dismissed their action without prejudice and continued using the Easement.

On 29 May 2019, Robert Hovey was arrested for trespassing on Defendant's property. In response to the arrest, Plaintiffs again filed suit requesting that the trial court declare the Easement dedicated to the public. The Town, as before, took no position on the litigation but agreed to be bound by any judgment.

The parties stipulated "that no issues of material fact exist between the parties to this lawsuit, and that the action before the [trial court] exists only as a matter of law." The plaintiffs argued that the plat alone established a public dedication of the Easement. The defendant contended that the plat failed to disclose an unambiguous intention to dedicate the Easement to the public because its stated intention was to dedicate "all roads, alleys, walks, parks, and other sites to public or private use as noted," (emphasis added) and the plat contains no explicit language dedicating the Easement as for public use. However, the trial court accepted the Plaintiffs' argument and granted their motion for summary judgment.

The Court of Appeals opinion sets forth an extensive review of the North Carolina cases detailing the common law doctrine of offer and acceptance of public easements. This case should prove to be a good reference for attorneys needing to research the issues. The opinion succinctly concludes:

The dedication on the face of the plat provides that the developer "dedicate[d] all roads, alleys, walks, parks, and other sites to public or private use as noted," (emphasis added), meaning dedications of any walks "for public . . . use" and "private use" would be "noted" on the plat. Only the "streets and roads" are noted as for public use. Given the qualified language of the dedication that only items noted "for public . . . use" would be dedicated to the public, and in light of the dedication of the streets in such a manner, the failure to designate the Easement as public creates, at best, an ambiguity as to whether the Easement was offered for dedication. Cf. Ocean Hill Joint Venture v. Currituck Cnty. Bd. of Comm'rs., 178 N.C. App. 182, 184, 630 S.E.2d 714, 716 (2006) (describing a failure to designate a road as either public or private under dedication language practically identical to that at issue here as an "ambiguity"). Because an offer of public dedication must be shown by evidence indicating a "clear and unmistakable" intent, Wright,[ v. Town of Matthews,] 177 N.C. App. at 11, 627 S.E.2d at 658 (citation and quotation marks omitted), and no such unambiguous intention is present on the face of the Sand Dollar Shores plat, the trial court erred in entering summary judgment for Plaintiffs and their claim should have been dismissed.

The plaintiffs also argued the application of several statutes including N.C.G.S. Section (1) N.C.G.S. Section 136-102.6, N.C.G.S. Section 113A-134.1(b) (2019), N.C.G.S. Section 136-66.1, N.C.G.S. Section 160A-299, and N.C.G.S. Section 160A-301, but the Court determined that they had no bearing on whether the developer intended to dedicate the Easement to the public. The Court concluded that none of these statutes "abrogates the common law of dedication." The Court opinion was unanimous in reversing the trial court and remanding for summary judgment in favor of the HOA.

The case should be of interest to real property practitioners, in that it can be said to cut both ways. On one hand, extraneous information included by surveyors and planning authorities on recorded plats will not create encumbrances on developer's real estate unless there is an unequivocal and unambiguous offer of dedication and a clear record of acceptance by the proper governmental authority. Note that "North Carolina does not recognize 'public user' as a legal manner of acceptance of an offer of dedication." Bumgarner v. Reneau, 105 N.C.App. 362 (1992). On the other hand, examiners seeking to determine whether a parcel of land has access when it doesn't front a public road cannot rely the simple depiction of easements on an adjoiner's plat as creating such a must be taken in such cases.

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