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Supreme Court puts local beach rules in limbo
The case centered on Nags Head’s authority to order removal of houses like these on Seagull Drive. (Voice)
For over two years, the town has battled property owners in South Nags Head, where erosion had placed homes in the public trust area between mean high water and the toe of the dune line.
Everyone is allowed to use the public trust area, even if it is privately owned. It is similar to a public right-of-way.
Nags Head has long contended that the houses pose a threat to public safety and if they eventually fall into the ocean, debris will endanger swimmers and other property.
A house owned by Cherry Inc. that was severely damaged by a 2009 nor’easter was at the center of the town’s court actions.
A Superior Court judge agreed that the town had the authority to declare the structure a nuisance and order it to be removed or torn down.
In February, the North Carolina Court of Appeals overturned the Superior Court decision, declaring the state, not the town, had jurisdiction over public trust beaches.
The decision by the Supreme Court leaves the Appeals Court decision intact.
“We believe the N.C. Supreme Court made a mistake in not hearing our case,” said Nags Head Mayor Bob Oakes.
“They essentially said the State of North Carolina is the only entity that can take action to protect the public’s rights in the public trust, which includes our public ocean beaches.”
The court decisions were in opposition to the manner most coastal communities viewed their powers within public trust beaches.
“The problem is in our back yard, and we feel that the local government is the right place to address the issue,” said Oakes.
“The decision means that we have to rely on the state to keep our beaches clean and usable by the public.”
Ike McCree, Currituck County’s attorney also expressed concern.
“I do not believe that the court’s decision prevents a county or town from regulating land use, driving on the beach or other general police power ordinances specifically authorized by statute,” McCree said.
“What is concerning is that the court apparently holds that should someone, for example, place a fence or other obstruction from the toe of a dune to the water (the public trust area) the local government has no authority to seek removal of the obstruction to allow for the public’s access to the public trust area.
“In Currituck, there is a house north of Corolla that the county now has no authority to seek removal from the public trust area despite at times of high tide access around the house is blocked.”
“Now coastal towns and counties will have to look to the state for assistance with these issues.”
Tim Dodge, a staff attorney for the N.C. General Assembly’s Office of Legislative Services, expressed the opinion in a 2010 letter that a local government could order the removal of a structure within a public trust beach “under their general police power and also possibly under their emergency powers to abate nuisances.”
An article in Legal Tides magazine, a collaboration of N.C. Sea Grant, the UNC School of Law and the UNC Department of City and Regional Planning, expressed surprise at the appeals court decision.
In that article, Joseph Kelo of the UNC School of Law and co-director of the N.C. Coastal Resources Law, Planning and Policy Center said:
“For coastal municipalities, the critical issue raised in this litigation was whether a municipality had the legal right to enforce the State’s public trust doctrine. The surprising holding of the Court of Appeals was that a municipality has no such right under existing State law.
“According to the Court of Appeals, only the State, acting through the North Carolina Attorney General, can bring an action affirmatively enforcing the State’s public trust rights. The motivating factor underlying the court’s decision seems to be that the structures ended up where they did through erosion and not through any affirmative act of the owners.
“What the court failed to take into account, however, is that anyone who builds structures along our highly dynamic coast is taking exactly the risk that these owners took/”
“The town is trying its best to maintain a public beach that the public can use and enjoy without the hazard of homes in disrepair that block a simple walk down the beach,” Oakes said.
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Sandy Semans Ross says:
Very interesting. This would be a great question to pose to the candidates who are running for state office. If elected, would they push for the state to remove the houses? Or would they take the stance that it is a property rights issue and the houses should be left standing?
Tim says:
Sandy, Since you are running what is your position? Is it to ask others what their position is? Are you waiting for Ray M to tell you what your position should be?
nags head bob says:
HA!
Nusience Homeowners 1, Imperial Town of Nags Head 0.
Jeff says:
I’m sure Nags Head’s elite rulers are still in shock after being told they can’t do something. How’s the view from the other side of the fence? It’s about time someone told Nags Head no.
Jon says:
Ms. Ross is not running for state office.
The state ought to pass legislation delegating the authority to local jurisdictions.
Ben says:
Now Tim, that was funny.
Ray Midgett says:
Well,
it seems to me like this also throws some kinks into the towns right to nourish the public trust beaches without jumping through a lot more hoops than they already have. So sad. 
Ray Midgett says:
Actually, Tim, I get most of my advice from Joe Lamb, and commissioners Allen Burrus and Richard Johnson. Spot on every time.
obxnana says:
There are 3 Appeals court judges and 1 Supreme Court judge up for re-election. Vote according to your sentiment on this issue.
Barking dog says:
I think nags head and the other coastal communities should stop placing lifeguards on the state public trust beaches and should stop their police from patrolling the beaches since according to this nc Supreme Court decision, they haveno authority! This should reduce our local property taxes!
obxlover says:
Would love for someone to actually post who owns these houses. I think a lot of people in the neighborhood behind these houses would be very surprised. Every time an article is posted, there is no mention of the owners actual name. These houses are dangerous and an eyesore to everyone enjoying the new beach. People are always walking close and under these houses and hopefully they come down before someone is seriously hurt. I know people are going into them because one day in September as I was walking, I met this couple who told me a story. She said the day before there were hand prints (made to look like bloody hand prints) streaming down one of the sliding glass doors and the words “Help Me” reversed and written on the inside of the door. She thinks someone called the police because the words and the hand prints had been washed off. Really freaked both of us and the scary thing about this story is next time it may not be fake. Please! Let the town do their job and demand these houses be removed. They are a public nuisance in every way.
obxlover says:
oh, and I agree with “Barking Dog”. Also, if the town can’t decide when these houses become a nuisance, then the state shouldn’t be allowed to profit by enforcing the fishing license. And for those who don’t know, the ticket for not having a fishing license is $35 and the COURT COST is $180!! Why not just say the fine is $215. I agree with the fine but find the court cost outrageous. Every time I’m on the beach and see a tourist fishing, I make sure to ask them if they have a license. It is not well publicized that a license is required and for many people, they have been coming for years and just do not know it changed.
Robbin Banks says:
Instead of the NCGA passing a law, a provision should be included in CAMA giving coastal communities/counties the authority to address hazards/nuisance issues on the public trust beach within that community’s/county’s jurisdiction.
NOTE: It’s Joe Kalo (not Kelo).
Nags head bob says:
Many of these nuisance homes are some of the oldest in Nags Head. Some passed down through families. Yeah, to most, they are just junky old beach boxes. But to some, it was where they spent the summers with their grandparents. That’s what old Nags Head is all about. Just as much history as their prize pier. Did the town call it a nuisance when it was in such bad shape you couldn’t even walk under it? The difference is this is private property. And they have not asked for or taken your tax money. Even though they are some of the ones that have been paying the longest.
Lance says:
I am the owner of the cottage 10211 e. seagall dr. I bought this house in 09 as a family investment. since isabelle the town of nags head has continued to stop me from fixing up the cottage as well as the other owners on that street. this hse is structually sound the only thing that needs to be repaired is the septic system. we now ave 200 feet of sand from beach replenishment, this hse has been here for 30 years and has never stopped the public from walking on the beach. how would you feel if the town of nags head forced you to tear down with you still oweing a mortgage. its just ashame that the town would rather spend your tax dollars on fighting you over tearing down an investment and not try to work with you in getting your hse back to normal
lsglsg1000@aol.com
Nags head bob says:
Don’t listen to Lance, he just wants to protect his personal property rights, rebuild his home with his own money and finish paying off his mortgage. He’s bias and doesn’t have the towns best intrest at heart. Listen to the person who wants them torn down because of the scary finger painting ……….
Nags head bob says:
By the way, I saw a jackolantern in a yard in kittyhawk. Does obxlover think we should tear this house down too?
Jon says:
Apart from $36M of taxpayer money, Sandy might be finishing off Seagull Dr. this weekend.
Mark says:
I am an owner of one of the houses In the article. I bought the house in 03′ to have a place to vacation with my family on the Beautiful Carolina beach. Due to all the beach erosion from the many storms that have hit the Outer Banks our septic system was washed out. No one warned us that this could happen. We had no Idea that the city would not allow us to repair the damage from the storms. The house was in good shape but again the septic system was washed out so the house was Condemned. The house is in no danger of falling over. The septic system repair price is a small fraction of what I paid for the house. I am willing to repair the septic system and fix the house, But the city will not allow us a building permit for repairs. Does anyone out there think this is fair that we should lose our house over this? How would you feel if this was your house? I thought Nags Head was a part of America where people had rights. All we ever wanted to do was to enjoy the Carolina beaches and pay our taxes.
Dot says:
I never knew people had to have a liscense to fish on the beach. I just moved away but, lived there since 1997. Saw people fishing all the time…
Bill says:
Good for the state. These self endorsed townships have incoporated to invade the publics basic rights & liberties.
We have vacationed here consistently for 30 yrs and finally retired here in ’06. Lookigf for a small community
environment. It is now just the opposite
I would like to see the state continue to win this issue and remove the worthless rergulations, laws & fines just so the townships can generate revenue.
Take the police for instance, there are more cops here per mile than ever need be. Often pulling you for worthless ego driven minor infractions that, lets say Hampton Roads would never do.
No I’m not advocating ridding the community of law enforcement officers but the majority are bullies and consistently break the law while driving themselves or shopping @ the local stores while on duty.
Fair examples of their stretching their authorities @ all levels
Dare county is chasing people away from here.
Wake up people.
Linda says:
Isn’t that almost million bucks our tax money. Any other tax payers aware of how our tax dollars are being thrown around? Read an article in the VA Pilot today with additional details. It gets more interesting as the story unfolds. Maybe Dare County would like their Parks and Rec Director or whatever he was back. He obviously doesn’t need to be in charge of our town!
Bob O says:
I am the mayor of Nags Head. The Board of Commissioners makes these decisions, not the Town Manager. Mr. Ogburn is an extremely conscientious manager, and represents the town well.
In 2003, these homes were all very close to the ocean, and protected by “temporary” sandbags. By 2009, the ocean washed under the homes regularly. After NorIda, the ocean was consistently under these homes, leaving no public beach. The septic tanks to the west of the homes were damaged by the ocean, and lying on the beach, exposed and broken. This was not a close call.
The age of the home is not a factor in these decisions, but it is incorrect that these homes are among the oldest in the town. Most were built about 30 years ago. And South Nags Head has been identified as having a high erosion rate for at least that long. Just because the ocean is a lake in the summer doesn’t mean it’s always that way.
The Town of Nags Head is not in charge of issuing septic permits. But if we were, it would be the height of stupidity to place a septic tank on the beach, east of the duneline, cover it with 2 feet of sand, and expect it to stay there.
My right to swing my fist ends at the end of your nose. There is a point where erosion puts a home into the public trust area, and blocks the public’s use of the beach. In North Carolina, the beach is a public resource. The Town is fighting for the public’s right to use the public beach.
Nags head bob says:
And who stands up for the homeowners? Without them there would be no town.
Nags head bob says:
Ok Bob, please explain to everyone what happens to this land when all the houses are torn down?
Ronnie says:
@Mark Home owner i agree with you and im a real local not one of these b…… that moved here and now try to run our lives!! Nags head is terrible and down right obsurd!!! Like i said im local a real local my family grew up in nags head woods if that tells you anything about being local!! I think this is a terrible thing to do !! I supprt the home owner!!
OBX Tom says:
Nags Head just wants the huge pastel McMansions with yuppies in them. They don’t want us to live there anymore. My family have been living and renting down there since the casino. The whole OBX is going to crap. The commercialism of every chain store on the east coast. The OBX was awesome before politicians moved in and licked their chops at the development zones !!!
What a shame. Look for my house with the FOR SALE sign in the front !! Thanks alot
Mark says:
Does anyone think that these houses actually walked themselves over to so called “public” land? These houses were built over thirty years ago in the same spot that they stand today. The ocean moved closer to them not the other way around. Thank g-d for the beach replenishment (which should of happened 10 years ago). If not for the replenishment the ocean would not of stopped until it hit the sound. All of the houses in Nags Head would of been in danger at one point. Now that the beach replenishment is done there is plenty of beach to walk on and enjoy. Why should these houses be lost? Lets do the right thing and get the owners to fix them up so we can all enjoy the higher real estate taxes that they will pay.
Nags head bob says:
Come on Mark! You are selfishly denying the town of the much needed public parking the town has planed for your lot.
Ray Midgett says:
No doubt that Mark is an oceanfront property owner. Nuff said about that.
Gail Jones says:
Reply to Nags head bob:
Did Bob O answer your question, “What happens to this land when all the houses are torn down?” I’m a victim of Town threats to take me to court, plus daily fines, if I did not demolish my home on E. Sea Gull Dr. House was demolished August 2010. The Town attorney assured me I would remain the owner of the land if I complied.
In checking the records at the Court House, I FINALLY found that my name has been removed from the records and slso the Pin # has been changed without notifying me. Also, no tax bill has been sent to me this year. I had been told there would be no tax due for 2 years…now, this is year 3. So what does Bob O have to say about this? Sounds like a SNAKE in the wood pile to me.
Gail Jones says:
To Ray Midgett and others: Please stop blaming Oceanfront Property Owners for this unfortunate situation. If erosion was a problem 30 yrs. ago when we bought the land….Why did the TOWN zone the property for home sites? Erosion was never mentioned at the time. I have spent far more money over the years trying to protect my property than the property was worth. And how cruel of the Town to issue these orders when Beach Nourishment was a matter of a few months away.
Also, my property was never for rent. Just HOME for me and my family.
Frank Moore says:
If you build/buy on the shoreline you have to expect erosion. Common sense shoud be used at all times and you cannot always expect someone else to explain everything to you. You get what you pay for, whether good or bad. Live with it and move on. No I didn’t buy a house on the shore line but could have !!
Sandy Crabs says:
Exposed or damaged septic tanks are a health hazard. When our septic tank was damaged, we replaced the septic tank and drain field. We live west of bypass. We had to remove trees and tear up entire yard and meet new guidelines. That is the deal when you own a home in a community and I agree the good of the whole is beneficial to all. Respomsible ownership maintains everyone’s property values, and protects the health and safety of all. We looked at property on the ocean over 20 years ago and the realtor explained the risk of losing your property to ocean over wash, exposed septic, etc. he said we could be paying for a house we do not possess and land that did not exist. We did not buy the house on the ocean. As a 85 year old native told me, “Only foolish people build on the ocean side.” She has lived here all her life, figured she knows what she is talking about.