Indian Beach, Carteret County / Flickr

NC - EDITORIAL: Shifting sands of access need better delineation

Carteret County’s tourism took another hit recently when a property owner with a quitclaim deed to sand dunes paralleling portions of the Atlantic Beach sought to deny visitors the ability to cross his newly acquired property to access the public beach. Visitors to our beaches are not interested in property right disputes and absent a quick conclusion to this issue, the county’s reputation as a visitor friendly community may be damaged.

Mark Hibbs, editor of the N.C. Coastal Federation’s digital publication Coastal Review, reported on efforts by James Anthony Bunn to deny or control access to the ocean on sand dunes he has acquired by quitclaim. In North Carolina a quitclaim deed is a legal conveyance of a deed from seller to buyer with the caveat that there are no guarantees or assurances that the property has clear title or that the seller even has the authority to make the transfer.

Shortly after taking “ownership” of several parcels of land that lie between the Atlantic Beach town limits and the ocean, most of which are in front of condominiums, Bunn offered to lease easements to the property owners, allowing their tenants access to the public beach. Absent those lease agreements, Bunn erected no trespassing signs notifying beachgoers to stay off his property.

The condominium owners are now banding together to challenge Bunn’s claim and his denial of access. This case poses both financial challenges for property owners and yet another negative for the county’s primary industry- tourism.

Carteret County is no stranger to controversial cases involving beach and water access.

One of the state’s most famous waterfront property rights cases, decided by the N.C. Supreme Court in 1903, involved submerged land in the nascent town of Morehead City in the case of Shepard’s Point Land Co. v. Atlantic Hotel.

In 1856, six years prior to the incorporation of the town, the land company purchased a parcel of land fronting Bogue Sound. Over the ensuing years the land became submerged, giving the abutting property on which the Atlantic Hotel was situated, access to the sound. In the process the hotel constructed piers to accommodate its tenants, which the land company contended amounted to trespass or a taking of the deeded land under the water.

The court found in favor of the Atlantic Hotel. The conclusion of the case delineated the rights associated with the owners of the state’s waterfront property to include the rights of littoral or riparian property ownership; the right of access to the water; the right to build a pier; the right to make reasonable use of the waters flowing by the land; and the right to accretions or naturally occurring additions to the land.

Since that precedent-setting case, the county has experienced a litany of cases that have created headaches for local residents, the beach towns, the county, state and even the federal government. Many of the conflicts have involved disputes with public access and beach nourishment efforts on the part of the U.S. Army Corps of Engineers.

As recently as 2017 the U.S. Supreme Court refused to consider a prior judgement that denied an appeal by Gregory and Diane Nies, who owned an oceanfront home in Emerald Isle. The property owners contested the town’s efforts to acquire a permanent easement over a portion of their beachfront for beach nourishment purposes, claiming it was a “taking” without adequate compensation

In 2003 the Nies refused to sign a permanent easement with the town for beach nourishment but instead offered a temporary easement that would expire in 2005. The town was not satisfied with that offer and attempted to acquire an easement though eminent domain.

According to a Cato Institute report, “After a court battle, the town was granted a limited easement to enter the Nies’s land in order to inspect and restore erosion from major storms. The town wasn’t satisfied, however, because in 2004 it passed an ordinance allowing public driving on the land, and in 2013 it redefined the “public trust beach” as “all land and water area between the Atlantic Ocean and the base of the frontal dunes”—in other words, it eliminated the traditional mean high water property line.”

“The Nies challenged the taking of their property, and the North Carolina Court of Appeals held that the town’s actions were justified because a state law had redefined the public trust portions of beach. The North Carolina General Assembly, the court held, can “modify any prior common law understanding of the geographic limits of these public trust rights” and therefore the Nies were not owed any compensation,” the Cato report noted.

After consideration by the N.C. Supreme Court and then appeals through the federal courts, the case came to the U.S. Supreme Court, which let the low court decision stand.

UNC Law Professor Joseph Kalo and Walter Clark, Policy Specialist with N.C. Sea Grant, in 2005 authored a two-part series on the “Rights of Oceanfront Property Owners in the 21st Century” appearing in Legal Tides, a publication of the North Carolina Coastal Resources Law, Planning and Policy Center. In their conclusion they note that, “As the 21st century begins and North Carolina confronts the challenges of increased development along erosion-prone beaches, the legal issues of determining private rights and delineating state responsibility become increasingly complex.”

Their conclusion is correct in the sense that beach and water issues are as infinitely dynamic as nature itself, but when it comes to establishing even a temporary solution such as determining public access, there needs to be continuity. That continuity is obviously missing in Atlantic Beach and possibly much of the entire coast.

Sudden surprises as beachgoers will experience in Atlantic Beach are unnecessary and as noted, costly. The towns, the county and state should review all of the beachfront properties to delineate what is public trust and what is private property, so another quitclaim doesn’t create confusion, and ultimately damage, a major economic engine for the both the state and our county- tourism.

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