A long legal road to cleaning up the shoreline
It seems so simple. Why can’t Nags Head quickly remove derelict oceanfront houses “trespassing” on the public beach after years of erosion?
The town has faced criticism over the slow process, but longtime residents are familiar with the legal dance.
When large numbers of Kitty Hawk’s oceanfront homes surrendered to erosion, officials struggled to get rid of them and clean up the beach.
Now Nags Head faces the same problem, which has complicated the debate over its $36 million plan to pump sand onto 10 miles of shoreline.
A look at Surfside Drive and the beach to the south leaves little doubt that homes obstructing the beach need to go. Owners have clearly given up on most of them. Decks sag. Siding peels. Stairways dangle above the beach. Septic tanks sit on the sand. Some houses teeter on the brink of collapse.
At high tide, their pilings in the surf, they become hazards to swimmers. Emergency vehicles can’t get by. Parents have to keep an eye on children to make sure they don’t explore the condemned structures.
Still, they remain as Nags Head negotiates the complex legal process. The biggest hurdle, Town Manager Cliff Ogburn says, is that “the definition of what constitutes the public beach is not black and white.”
There are as many as three definitions of the public trust beach, Ogburn said, and each one applies to different scenarios. In some cases, the public beach starts at the average mean high tide line. That is the preferred definition of whether a house is illegally occupying the public beach. Other definitions relate to static vegetation lines, stable dune lines and setback rules.
Lacking a clear legal definition, Ogburn said, municipalities face legal action by homeowners for destroying private property if they unilaterally tear down structures. As a result, Nags Head relies on a two-pronged approach coupled with legal proceedings.
First, the town can invoke a state statute that prohibits an individual or corporation from acquiring rights in any “public way,” including encroachment or obstruction. A second state statute allows the town’s chief building inspector, Rodney Ballance, to condemn a property for reasons related to public safety, among them the lack of functioning septic systems, electricity and running water and the danger of collapse. Owners are notified by certified mail and have 14 days to rectify the situation.
The town can also cite its own code, which allows it to declare a structure a nuisance if any part of the house encroaches on a public trust beach. At least two dozen have been declared nuisances.
While some condemnations can be lifted if repairs make a house inhabitable, declaring one a nuisance is aimed at getting it removed, Ogburn said. Once it is removed, another cannot be built. Any house on the public trust beach has been condemned and declared a nuisance.
Even if the a beach builds up naturally or is renourished, the homes would not be removed from nuisance status nor would the lots ever become buildable again, Ogburn said, despite speculation from some that beach nourishment is partially aimed at salvaging condemned homes and lots that no longer exist.
Because of the uncertainty surrounding the definition of a public trust encroachment, municipalities prefer obtaining a court decision before removing a structure, which means the town has to sue a homeowner. The entire process can take nine to 12 months, even without an appeal.
Ogburn said the town invariably wins, which begs the question — why do the owners go to the trouble? One possible answer: insurance.
Lots cannot be insured, but owners can continue to insure a structure with hazard, wind and flood insurance even if the house is considered to be on the public trust beach. Insurance will not pay an owner if a home that is intact has been condemned, is on the public trust beach or is voluntarily removed to comply with a nuisance order. And technically, the owner is tagged with the cost of removal, which can run from $10,000 to $30,000.
So owners can use the legal system as a delaying tactic in hopes that a storm will take the home and they can collect on the insurance. A potential $20,000 liability could thus be turned into a $150,000 windfall. Owners also have emotional or business attachments to their homes, which add to the desire to fight a total loss.
Town officials have tried to persuade the Federal Emergency Management Agency and other agencies to help owners remove structures by offering them its value. FEMA has said there is no money for that now but there might be in future budgets.
Officials also have asked owners for permission to remove exposed septic systems at town expense, and the Town Council recently authorized Ogburn to offer owners to pay for the cost of removal.
Leaving homes until the ocean takes them will create a potentially bigger problem. But as long as insurance promises a full payout on their value, the legal process will take time and test the patience of those who want to see the beach cleaned up.
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Lisa says:
Thanks for such an informative article. You and Rob are doing a public service by publishing this online newspaper. Know that your work is appreciated.
Fish says:
This is a courts problem. Any cop can get a warrant in a couple of hours. A court does not HAVE to set a 9-month date.
In the interest of public safety, the town needs to develop a way with the judges to fast-track a removal.
The locals want those relics GONE. Just make it happen.
barbara says:
Very well written story. Good job!
Hal Kitzmuller says:
Very informative, but a few comments:
1) Towards the end of the story, you say owners can continue to insure a structure with hazard, wind and flood insurance even if the house is considered to be on the public trust beach, but then go on to say that insurance will NOT pay an owner if a home is condemned, on the public trust beach or voluntarily removed to comply with a nuisance order. Which is it?
If federal flood insurance does pay if a condemned structure or structure on public trust (state-owned) land is damaged, this clearly needs to be changed. The town should have it’s expensive DC beach lobbyist make this happen ASAP!
2) Town Manager Cliff Ogburn says the biggest hurdle is that “the definition of what constitutes the public beach is not black and white.” But it is!!
In NC, the mean high water line is the definitive boundary between public and private property (of course, exactly where the MHW line is may be debatable). The static vegetation line, stable dune line and setback rules do govern the location of development, but DO NOT delineate the public/private boundary. The UNC School of Government and/or North Carolina Coastal Resources Law, Planning and Policy Center should be able to clarify this.
3) It seems there are three very sound legal options available for removing these structures: 1) The town can invoke a state statute that prohibits an individual or corporation from acquiring rights in any “public way,” including encroachment or obstruction, 2) A state statute that allows the town’s chief building inspector to condemn a property for reasons related to public safety and 3) The town can also cite its own code, which allows it to declare a structure a nuisance if any part of the house encroaches on a public trust beach.
So why the delay?
Rob Morris says:
I added “that is still intact,” which should clarify your insurance question. Thanks.
Gail M. Jones says:
Thanks again for an excellent article. Interesting comments….My house is condemned and I’m told it is sitting on Public Trust by the TOWN of NAGS HEAD. NFIP had an ENGINEER inspect my house after the storm and I have a copy of his recommendations for repairing my property. My damage claim was paid to me and three months later the policy came up for renewal and I (they) renewed it. I still have the deed to the property that I purchased in 1977….What happens to that?
Bob O says:
Hal,
First, Nags Head doesn’t have a DC lobbyist, expensive or otherwise.
Second, as you say “exactly where the MHW line is may be debatable.” Is a house with one piling east of the MHW line on the beach? If half the house is east of the MHW? We’ve pursued properties where the entire home appears to be east of MHW, and we’ve used our nuisance ordinance that you mentioned. But we have to follow due process of the law, and it boils down to having a judge confirm that yes, this house has to be removed.
There’s been no delay in starting the process, it’s just a long process. And we’ve chosen the homes that are most clearly on the public beach to pursue first.
Hal Kitzmuller says:
Bob O,
Thanks for the clarification. It sounds like the General Assembly should stop wasting its time on terminal groins and focus on real issues, like private structures encroaching on the public trust beach (a problem that will get worse over the years, nourishment or not).
Carey Kelley says:
The town of Nags Head is a business ( the people of Nags Head are owners and the home owners are businesses, like it or not) you have an image issue which needs fixing. What about all the tourists that spend in the local area as they stay in the non-resident homes that take the time and money to keep them coming back, by hiring the local people to clean, paint, fix, maintain, build, mananage, replace dunes, decks, steps, install pools, hot tubs etc, to these non-resident properties? If all non-resident home owners took their homes and businesses and fled, how would the town of Nags Head derive its income?
I am sure all the non-resident home and business owners keep their properties and business in good shape in order to have their guests coming back only to see the town of Nags Head do nothing to maintain the beaches these people come here to enjoy.
If Nags Head maintained their business front (the beaches) you would not be dealing with houses in the ocean and on the beach.
Carey Kelley says:
And since you (Nags Head) are a business which has let its frontage (the beaches) deteriorate to a point of embarrassment, which from a business standpoint is ludicrous, you as a business can find it acceptable to throw away INCOME PRODUCING inventory (the perfectly good beach houses) even more astounding.