Nuisance issue may land in Supreme Court

By on May 7, 2012

Before beach nourishment, the surf would wash under these houses on Seagull Drive. (Rob Morris)

Coastal communities are lining up behind Nags Head as it seeks a North Carolina Supreme Court hearing on its power to enforce state law along the town’s beaches.

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.

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Comments

Susan Spargo

May 9, 2012 4:37 pm

We will be down the end of the month and I will do the dip! I guess I am a `moaner’? If that is true, I have been moaning a lot of years – about not having a road, cars getting stuck, people complaining of the houses in front of us,even before they were abandoned – MOAN, yes, I
MOAN – and now I hear we are called South Beach, MOAN,
Those houses across from us will not fall in, their pilings are so far down they, the last time I saw them, looked as though they were sitting on the sand and if anyone didn’t know you would think nothing was wrong with them – I have been told they are not responsible for taking the houses down and picking up the debri, unless that has changed from years ago – We are talking almost 24 years for our house and probably almost the same for the ones across the sand.Thats allfor today. Nice hearing from you guys.

Jerry

May 9, 2012 2:10 pm

Ottoman,

I’m with you. I think we have free party houses in South Nags Head. Tell me what time you are going to the living room and I will bring the Margueritas and Music, unless already occupied by crack users.

Paul

May 9, 2012 9:16 am

What’s funny is that it’s “illeglly tax’d” sand until we get a few storms and that very sand keeps those moaning fools houses around for another couple of years , then what do you call that sand ??? You moaners are reaping the benefits we are ALL paying for , enough already.
As for those houses ,if and when the houses fall can the township go after the homeowners for cleanup monies ?? Why hasn’t it be mandatory to seal those homes up so that nobody gets hurt ?

Susan Spargo

May 8, 2012 7:37 pm

And Gentlemen – I suppose as an owner across the `sand’ road, we are paying taxes on,I,too, could burn the houses down, knock them down, since I own part of the public trust beach??
Not only are they an eyesore, but for over two years `kids’ were climbing up into the houses, probably still are, the police were called,probably still are-most of the houses had their sliders open soon after the storm – left open houses cannot be made whole again – too much water, rain, sand mold, etc.
Oh well, we have lived with our illegal taxed sand and the ugly houses for a few years now, and as long as the town continues to service our small part of Seagull Drive, we will rent it, use it, love it.

JF

May 8, 2012 9:27 am

If the town would have paid off these owners, it probably would have been been cheaper than all the legal fees that they have to pay for. Is it a theory to spend a dollar to save a dime.

Native son

May 8, 2012 7:53 am

A public trust beach ends south of Oregon Inlet.The Feds don’t recognize Public Trust Beaches.

Nags Header

May 8, 2012 1:42 am

You can bet your butt that if the right good ol’ boy or girl owned one of these cottages still standing, that has since had the beach nourished, they’d be allowed to repair it and keep it.

And on a related note… is it true what I heard about the old house in the sound behind jockey’s ridge, that was lost during the storm, is being re-built?

How’s that work pertaining to getting past Nags Head codes & permits?

Then there’s the monstrosity restaurants on the causeway.
Yeah, I’m sure those lot coverage permits were legit.lol

It’s obvious that there are two systems here & it depends on who you are as to which one you get treated to.

Allan

May 7, 2012 7:39 pm

mike–except you.

ekim

May 7, 2012 6:37 pm

Dont worry Allen they ILLEGALLY TAXED us for their sand they can do the same thing to pay their legal fees, And no one will do or say ANYTHING about it!

Ottoman

May 7, 2012 5:23 pm

So, if these houses are in the “public trust” zone, then I can set up my chair in their living room? Sounds like anything in front of the dune is free use.

“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.”

Allan

May 7, 2012 4:50 pm

I predict: no person reading this today will still be alive when this legal argument ends. Second prediction: when this matter is decided, legal fees will have long since eaten up any awards a court makes to the parties.

chaser

May 7, 2012 4:07 pm

A house that looses drain lines to the spetic, let alone right next to the ocean, should not be lived in until fixed.

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