Did original deeds give public access through private land in Duck?

By on June 19, 2019

Sea Breeze Drive Access in Duck.

Sea Breeze Drive Access in Duck.

May 29, about 8 a.m. at the Sea Breeze Drive access in Duck. As Bob Hovey approaches the path to the beach, his cellphone is recording when he is confronted by a man and a woman who tell him he is not permitted to use the access.

“You are on my property,” the man says, adding, “This is deeded to me.” He then curses at Hovey.

As the video continues, the woman tries to take his phone.

The two-minute, seven-second obscenity-laced video culminates with Hovey’s arrest by the Duck police for second-degree trespass.

Widely viewed on social media, the video dramatized a longstanding dispute between the Sand Dollar Shores Homeowners Association (HOA) and Hovey, the owner of Duck Village Outfitters, and put the town in the middle of a wider debate over public access to the public beach.

At the heart of the dispute is whether the Sea Breeze access and others in Duck are reserved for the exclusive use of HOA property owners or are available to the public.

How does beach nourishment fit in?

Beach nourishment was partially funded by the Town of Duck, which assesses taxes in two Municipal Service Districts on the oceanside. Those taxes cover about $1 million of the town’s $1.2 million annual debt payment for the work, which was finished in 2017.

Money also came from the Dare County Beach Nourishment Fund. The fund was established under state legislation in 2002 authorizing the county to assess an additional 2 percent occupancy tax paid by visiting renters solely for beach nourishment. All of the towns, except Manteo, have tapped the fund for beach work. The county provides no funding from county property tax revenues.

Nourishment projects require a permit from the U.S. Army Corps of Engineers, which is responsible for oversight but provides no funding.The dry sand beach is deeded to private property owners but can used by anyone under the Public Trust Doctrine in North Carolina.

Here is what the Corps says about access in the context of beach easements provided by oceanfront property owners for nourishment work:

Will the public have the right to use the beach on my property?

Yes. The Corps requires that the beach remain open to the public for use. The public will be able use the beach on which the easement has been placed in a reasonable and lawful way.

It does not, however, turn the beach into a municipal beach that is controlled by the government. It still remains private property.

In addition, the public will not be permitted to use any portion of the property beyond restrictions set in the easement. For example, the public is not permitted to traverse the property in order to get to the beach.

In North Carolina, the beach to the dune line is considered public and anyone can use it. Access, however, is not a public right. If a property owner does not wish to grant access, they cannot be compelled to.

Unlike Kitty Hawk, Kill Devil Hills and Nags Head, Duck has no public access to the ocean. The town is not unique in that regard. Southern Shores has no public access and many of the villages on Hatteras Island have very limited options.

How Duck was developed, though, was unlike the other Outer Banks towns. That difference is at the heart of Hovey’s belief that the town does have public access.

N.C. 12 closely parallels the Atlantic Ocean in most towns. But in Duck there are wide distances between the state road and the beach. By comparison, as Ocean Boulevard travels through Southern Shores, single lots separate the road and the beach.

When the county first platted Duck, there were multiple properties between N.C. 12 and the Atlantic Ocean.

“In Duck, there were big rectangular plats of land that had parallel property lines that went from the Ocean to the sound in an east to west direction,” Hovey said.

“When the developers bought the land, their sole intention was to make money. They weren’t trying to better the town,” he adds. “It was an investment. They divided them up into as many parcels as they thought they could make the most money.”

To be marketable, there must be access to a property. To do that, Hovey says, the developers took a small slice out of properties going to the ocean.

“They created the easement to go right down the center of the street and extended it out into the ocean,” he said. “By putting the easement across two pieces of land, the land was still very much marketable and very viable.”

The developers would then build a road to NCDOT specifications and give the road to the state.

“Then it only would be the responsibility of the state department of transportation,” Hovey said.

Unlike most states, North Carolina towns and counties neither own nor maintain public roads; that is solely the responsibility of the state.

“The town doesn’t own any roads,” Town Manager Chris Layton said. “The roads are either DOT maintained or they’re private roads maintained by the HOAs.”

That roads in the Sand Dollar Shores HOA such as Sea Breeze or Plover are public and maintained by the state is not at issue. Hovey’s contention is that in 1983, when the developers granted the easement for the roads to the state, that easement went to the beach. It did not end at a cul-de-sac or at an oceanfront property.

Attorneys at Sharp, Graham, Baker and Varnell, who represent the Sand Dollar Shores HOA, asked to not be quoted for this article but did agree to outline their client’s position.

They noted that the language is standard for granting an easement for public use roads, but that the grant does not extend to private property on the beach, noting that the access is designated for the private use of the HOA.

The May 29 encounter was the culmination of Hovey’s ongoing dispute over access to the beach in Duck.

In 2016, Hovey and his wife, Tanya, brought suit against the Sand Dollar Shores HOA. In their court filing they say that they “have been denied access to the Atlantic Ocean by the HOA over the pedestrian beach access easement located at the east end of Sea Breeze Drive.”

The document goes on to state, “The Hovey’s have the right to use the … 8-foot pedestrian beach acces …”

In their motion to dismiss the case, Sand Dollar Shores attorneys pointed out that to be public access the easement would have to be specifically designated as public access. The easement language does not do that. It simply refers to it as a ” “Pedestrian Beach Access Easement,” the motion says.

According to Hovey, he simply ran out of money to pursue the case and it was dismissed but never resolved in 2017. The judge dismissed the case without prejudice — a finding that allows the suit to be reinstated at a future date.

Town of Duck: Caught in the middle

Looking south from the Field Research Facility. Approximately a quarter mile of open beach is seen. Photo, USCOE

Looking south from the Field Research Facility at about a quarter mile of open beach. (Army Corps of Engineers)

When Hovey posted the video of his confrontation and arrest on Facebook and Youtube, it quickly gathered thousands of hits, and much of the reaction held Duck responsible for the lack of public access.

Town Manager Chris Layton is quick to push back against that. Duck did not incorporate until May of 2002, 20 years after the oceanfront properties had been platted. Much of the property had already been sold when the town incorporated.

“All oceanfront property was developed and platted before we became a town,” Layton said.

As a consequence, the town has never had a public beach access.

“The position of the town is that we do not own or maintain any access points. Because we do not own them, we cannot give permission or not give permission for people to use those,” he said.

Even if an access was designated public, it would not mean that the path or trail would be immediately available for public use. Most of the streets running to the ocean end in cul-de-sacs or dead ends.

“If you have a public access point you have to have the parking you also typically have to have restrooms and other facilities there … You have to provide for those things. That certainly increases the room that you need. We are talking about roads that are in subdivisions. They aren’t pop outs off N.C. 12,” Layton said.

Layton makes it clear, though, that if an opportunity arose, the town would pursue it.

“If someone were willing to come to us and say, ‘We will give you or negotiate to use this point as an access point for the general public.’ That could be something we could explore,” he said. “No one has come forward and said that. That doesn’t mean it couldn’t happen, but that hasn’t happened so far.”

At the June 5 Town Council meeting, Mayor Don Kinston, responding to an email from Hovey, seemed to acknowledge in his response that Duck would have to address public access.

“The Town Council is open to discussing this issue at a future date when tensions are eased and engage interested stakeholders in this dialogue.  Staff will develop a plan for this discussion over the coming months.  In the meantime, the Town is updating its Comprehensive Plan and CAMA Land Use Plan and there will be opportunities to provide comments on state road parking and beach access, through surveys and public meetings during this process,” Kinston said.

The first public forum after the May 29 incident, the June 5 Town Council meeting was notable for its lack of rancor. Twelve speakers came to the podium. Only one spoke in favor of continued private access.

Bob Hovey speaking at the June 5 Duck Town Council meeting.

A number of speakers asked about the possibility of public access at the Duck Field Research Facility (Duck Pier). At one time, before 9/11, the public could use the beach next to the facility. That is no longer the case with access controlled by a locked gate.

The town is aware of the potential for public access on the property, according to Layton, and has taken steps to make it easier for the public to use it if it becomes available.

“Years ago we rezoned that property conservation and recreation. If it ever did come available, there would be one other hurdle to it becoming developed as residential. Somebody could come in and rezone it residential, but the idea would be that if that ever becomes available the town could use it for recreational access purposes,” he said.

Layton also noted that the town has at various times asked about access but has been rebuffed.

“We’ve asked in the past,” he said. “We’ve asked pretty much knowing the answer. But we asked. And we got a no. And we asked again and we got a no. Nothing has changed.”

The Outer Banks Voice contacted the Corps of Engineers for their position on public access to the Field Research Facility (FRF) and the response from Robert DeDeaux Public Affairs Officer indicates granting public access would be difficult.

Here is the full email response:

The scientists, engineers and researchers of the Field Research Facility (FRF) place the safety of the public and the citizens of the Town of Duck as their highest priority. Since its establishment in 1977, the FRF has acted in accordance with public land and safety policies and in accordance with DoD guidelines. As an internationally recognized Department of Defense (DoD) Laboratory encompassing approximately 176 acres and a little more than a 1/2 mile of North Carolina coastline, the FRF is responsible for collecting valuable data on waves and current behavior along shores, seafloors and coastlines. To successfully perform this important mission, a wide range of measuring instruments lining the shore and immediate areas and sensors not visible above the water are needed. This equipment can pose safety concerns to individuals who may walk, swim or surf in these areas. Signs have been posted alerting the public to the potential  dangers and access to these areas is prohibited.

There still may be some form of compromise, although given the history over the past 19 years since 9/11, it is unclear what that would be.

Yet public access to the FRF seems to be the gold standard, something Hovey feels may be the best way out for everyone.

“That would be amazing. It would be a dream,” he said. “It would be a beautiful public beach within an easy drive that the public can access. That would be a win for everybody.”

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Comments

  • John

    Can somebody please address the question of beach nourishment in Duck. Did Duck receive public money, similar to Nags Head, Kitty Hawk and KDH, to help pay for the cost of adding sand to their beach? The only way to receive public money was to have public access to the beach. If they did receive beach nourishment money and they have no public access then every taxpayer in Dare County should be entitled to a refund check.

    Wednesday, Jun 19 @ 9:11 am
  • Runnerguy

    John, great point !
    The citizens of Dare County deserve the honest answer.

    Wednesday, Jun 19 @ 4:25 pm
  • surf123

    You are confusing two different issues (access to get to the beach and the ability to be on the beach). The latter is the issue being addressed here and there is no public access to the beaches of Duck period, however anyone member of the public can use the beach up to the dune line or high tide or some other measure. NC has always been this way and the pumping of sand did not change this. Like it or not the land behind whatever delineator there may be is private property.

    Wednesday, Jun 19 @ 6:10 pm
  • Rob Morris

    John — The oceanside property owners in Duck pay extra taxes for beach nourishment. The share coming from the county is occupancy tax revenue dedicated specifically for beach nourishment by state law. So technically, the tourists are paying for it and not other taxpayers in Dare County. The public access rule applies to federal funding, as I understand it. It will be interesting to see if that comes into play when they ask for reimbursment from FEMA for sand lost during a named storm.

    Wednesday, Jun 19 @ 8:34 pm
  • John

    Thank you all for your responses and clarifications.

    Wednesday, Jun 19 @ 8:54 pm
  • ConservativeBeachBum

    There is a special tax on Duck ocean side & front owners. The rest comes from the occupancy tax that Duck contributes more than we get back.

    Thursday, Jun 20 @ 8:49 pm
  • Manteoer

    Disecting it further if it is in fact (which it is, a public beach) you can call it a human rights violation and ultimately the beach is supposed to be available to public (people)
    Look people was Hovey or anybody else going to the beach spraying graffiti no. Was he doing anything other than going to the beach no so as long as no one is disturbing anything. WHAT IS THE BIG DEAL?
    People be available to put yourself in others shoes. Be happy start a conversation with a stranger you might make a friend.

    Wednesday, Jun 19 @ 12:57 pm
  • surf123

    Not committing a more serious crime does not permit you commit lesser crimes. He is trespassing and there is no recourse and he actually made the situation a lot worse by making a scene. You may not agree with it, but the people who own those neighborhoods have a right to prevent trespass. There are plenty of other places to access the beach, but unfortunately you have to drive. My street is public, but the beach access is private. The homeowners on the street have deeded access through an 8′ wide portion of one of the oceanfront lots. It is not public property by any stretch of the imagination, however not a lot of people live on the street and when the surf is good most people don’t know the access is private and generally don’t care about the parking. All is good until some jackass defecates on the side of road or helps themselves to the outdoor showers or leaves their trash on the road or can’t exercise some control of their language. I am certain there is more to this story than what he is telling us about.

    Wednesday, Jun 19 @ 6:19 pm
  • Manteoer

    I don’t care who owns it I’m talking about sharing. I grew up in southern shores spent my life on that beach and in duck to and never looked at anyone walking to the beach as someone that didn’t belong there those people walking to the beach arent doing a dam thing except being in your eye sight now just go back where you come from.
    This is why I moved to manteo to many out of towners up the beach with their I’m better that you attitudes and that isn’t what we’re are about here now just share the — beach period .

    Wednesday, Jun 19 @ 9:26 pm
  • ConservativeBeachBum

    This is not kindergarten, so save the sharing lessons for your hippie friends. Just because a troublemaker tries to cause problems where they don’t exist, doesn’t mean property owners have to surrender their property rights. Period. How about you give us your Manteo address so we can all share your property.

    Thursday, Jun 20 @ 8:42 pm
  • Siren

    Good point, Manteoer.

    Thursday, Jun 20 @ 6:59 am
  • Truth

    He was running a business from private property. He’s not just some surfer who happened to be at that beach access. He runs surf lessons and owns multiple surf shops. He has a personal bone to pick and used social media to fool people into thinking he was a victim.

    Thursday, Jun 20 @ 7:07 am
  • ConservativeBeachBum

    The town of Duck does not, and should not strive be all things to all people. This is a non-problem searching for a solution. As the town recently acknowledged in their meeting 99% of all Duck residents currently have access to the ocean side beaches. If beach access was so important to Hovey, it defies logic why he purchased property in the 1% of Duck that didn’t have access. This appears to me to be more about drawing attention to himself, than anything real concern about beach access rights. He’s seems to be a trouble maker who went looking for a fight over a non-issue. The town should focus their energies on real issues, not manufactured ones.

    Wednesday, Jun 19 @ 1:34 pm
  • OBXer

    Seriously? You say 99% of all Duck residents currently have access to the ocean side beaches? NO ONE has ever said that. Where do you come up with that figure, and where are the beach accesses that the 99% get to use?

    Wednesday, Jun 19 @ 7:30 pm
  • ConservativeBeachBum

    The town manager just provided that FACT in the last town meeting. Look it up, it’s a matter of public record.

    Thursday, Jun 20 @ 8:26 pm
  • OBXer

    Does the county keep original deeds?

    Wednesday, Jun 19 @ 1:41 pm
  • surf123

    Yes and they are and most are available online.

    Wednesday, Jun 19 @ 6:20 pm
  • Ottoman

    Dare County tax on line clearly shows property lines that have 15′ spaces for access like Hovey claims for access at end of roads in Southern Shores….Once you get into Duck they are “access easements”. Not on all but a lot of the roads. If he took it to court it should have been pretty straight forward, read what the easement is for. I couldn’t find it but it shows on the map.I think the issue is the “public” being allowed not just the “homeowner associates”. But being arrested for being on a access easement. .How are you going to police that? Just because someone calls and says you are on their property but they dont realize there is an easment? Is the cop supposed to look up who has access to which easment?..Soon you will have to have ID and go through a metal detector to get into Duck. Or maybe thats why the traffic always sucks in Duck!

    Thursday, Jun 20 @ 5:59 pm
  • Runnerguy

    The town of Duck’s cries of innocence fall on deaf ears to me. The town of Duck has always wanted to be “exclusive” and has never done a thing to help with beach access. I will never spend a dime in that town again.
    The Voice has been late to the party on this issue.

    Wednesday, Jun 19 @ 2:50 pm
  • ConservativeBeachBum

    Oh darn.

    Thursday, Jun 20 @ 8:31 pm
  • KDH

    You’re probably right. The absolute best thing to do would be to take it out on the independent stores and restaurants that employ locals. That’ll show them…

    Friday, Jun 21 @ 1:48 pm
  • Duck Vacationer

    I have vacationed in Duck for over a decade and am not bothered by the possibility that members of the public might access the public beach. The Duck Field Research Facility beach access should be opened to the public by the federal government ASAP. The beach is public and we walk by the research pier every summer with no danger to its scientific equipment or risk of terrorist attack. Ridiculous that is was closed after 9/11. Security theater at its worst. Al Qaeda is not going to bomb a bunch of sand dunes.

    Wednesday, Jun 19 @ 8:35 pm
  • surf123

    That is mighty nice of you considering you don’t own any land in Duck. The public has always been allowed to be on the beach, which is NC law I believe. What is no allowed is trespassing through someone else’s property to get there. It is unfortunate that there is not a public beach access point, but that ship has sailed as why would the taxpayers (landowner’s) want to spend their money to allow other people to directly access the beach.

    Thursday, Jun 20 @ 8:11 am
  • ConservativeBeachBum

    The town has asked and been rebuffed. Frankly, I’d rather have my town officials working on real issues, not manufactured ones. 99% of Duck residents have ocean access, this is a non-issue. Let’s spend precious taxpayer dollars to solve real problems.

    Thursday, Jun 20 @ 8:30 pm
  • Realist

    No but there are already possible bombs there. That’s why u can’t have your access to the front side of the Duck Research Pier see in case u didn’t know the military had plans and used that area around duck long before your precious vacation homes were built there. HAS nothing to do with 9/11. GOOGLE it they have 400 over 400 ammunitions in duck alone….There are actually quite possibly live ammunitions still in the sand around that area of duck pier. So the pier land and entrance needs to be opened to the public for your benefit? And ASAP as well? Get out of here. Act like this place is about the tourists needs and only the tourist’s needs SMH.

    Monday, Jun 24 @ 2:46 pm
  • Just Beachy

    That’s cute. There are “possible bombs” all over Duck and Southern Shores. Do you really think they only dropped them where the current property lines of the research pier are?

    Wednesday, Jun 26 @ 1:09 pm
  • CorollaCat

    Soooo, like I always say on here, everybody calm down. And please proofread; I can’t understand your misspelled, poorly punctuated rants. Also, everybody calm down.

    Thursday, Jun 20 @ 9:50 pm
  • hightider

    Duck and Southern Shores are much more exclusive, expensive, and beautiful communities than KDH or Nags Head. Anyone can access the beach itself; that is not in question. But only HOA members have the ability to access it the easy way and that is a privilege they paid for. Please google “Fishing, Sex, Defecation on the Beach Drive Redington Beach Neighbors to File Lawsuit” (Redington Beach FL/Tampa Bay Times). Most of NC is a far cry from attracting the trashy people who flock to FL beaches, but homeowners pay a premium for privacy. At a minimum, who wants to listen to someone else’s loud music or carousing in front of their beachfront home or even worse, the beach goers who knock on your door and become insistent you let them in your home to use your bathroom! And then you have to clean up the trash they leave behind.

    Friday, Jun 21 @ 6:36 am
  • Windy Bill

    Mr. Hovey. Respectfully, please provide a copy of all documents that address public beach access, however they are worded. We can read. Give us a shot at seeing your research.

    Friday, Jun 21 @ 5:57 pm
  • CCJJ

    So much bad karma these homeowners bask in. I would think non-resident homeowners would want as much good karma as possible especially during the lonely off season months. Blocking a local from simply walking to the beach seems a way to bring a lot of bad karma on one’s self.

    Friday, Jun 21 @ 7:51 pm
  • Random Dude

    Whatever happened to eminent domain? Just take the land and be done.

    Sunday, Jun 23 @ 1:21 am
  • Windy Bill

    Eminent domain does require compensation. The ensuing years in court will cause catastrophic drooling from lawyers.

    Sunday, Jun 23 @ 1:56 pm
  • Sean

    Is the said neighborhood on a private road or state maintained road. If it’s private put no trespassing signs up where that road meets rt 12 another good idea is put up a access gate to keep that community private.. Where in this state is someone not allowed to walk down a state owned street. Better get the national Guard there to protect and serve and maybe just maybe you can build a beighborhood border wall

    Sunday, Jun 23 @ 6:01 am