By Rob Morris on May 7, 2012
The North Carolina Court of Appeals ruled in February that Nags Head had no jurisdiction to order the removal of “nuisance structures” blocking what is known as the public trust beach.
A public trust beach is the area of sand between the toe of the dune line and mean high water that anyone is allowed to use under state law, even it is privately owned. It is similar to a state-owned right-of-way.
The town, and a resolution that other communities are taking up, argues the ruling calls into question local power to create and enforce ordinances regulating dogs, obstructions and driving on the beach, among other things.
Dare County was the latest, unanimously endorsing the resolution on Monday. It says the state historically has given local governments broad authority to protect the condition and use of the public trust beach.
For more than two years — starting long before beach nourishment — Nags Head officials have battled property owners whose houses seemed on the verge of toppling into the ocean. Before beach nourishment, the ocean would routinely wash under the houses and debris littered the sand around them.
A row of eight houses along Seagull Drive in South Nags Head — where erosion had consumed the beach past the dune line — became the focus of the legal conflict.
All eight were declared nuisances by Town Manager Cliff Ogburn because they were in the public trust right-of-way. In addition, six of them were considered dangerous because of their dilapidated condition.
One of the eight houses, which is owned by Cherry Inc., is at the center of the Supreme Court petition.
In its ruling, the appeals court said that only the state has the power to enforce North Carolina’s public trust doctrine. It overturned a Superior Court ruling that dismissed Cherry’s challenge of the town’s nuisance structure designation and ordered that the cottage be torn down or removed.
Lance Goldner, president of Cherry, said the town was wrong in saying that the cottage was in serious disrepair, dangerous and uninhabitable. He said the house lost some steps, drain lines for the septic field and water and electricity connections after the November, 2009 storm known as Nor’Ida.
“Otherwise the (dwelling) is in habitable condition and is not suffering from any structural defects that would make it unsafe,” Goldner said in an affidavit.
Goldner contended that the town had blocked Cherry’s efforts to obtain permits to make repairs and that the Dare County Department of Public Health had approved a permit for upgrading the septic system.
Although beach nourishment put plenty of beach in front of the row of houses, most are visibly beyond repair. One lists precariously on its pilings.
Ogburn said in an interview that the state Attorney General and the state Department of Environment and Natural Resources have agreed that localities can determine matters affecting the public trust beach.
At one time, as many as 26 houses were considered nuisances. All but those on Seagull have been removed from the list. They are no longer in right-of-way, or they have been torn down or moved, Ogburn said.
Depending on what happens in the court system, legislators will probably be asked to consider a measure that would clarify the public trust question.