Coastal towns seek clarification to regulate beaches

by Michelle Saxton
Wednesday, January 9, 2013

Wrightsville Beach was among several coastal towns planning to consider an Emerald Isle resolution seeking North Carolina legislation to clarify municipal authority on the state’s ocean beaches.

Emerald Isle’s Board of Commissioners approved the resolution last month after a recent state Court of Appeals decision involving Nags Head raised questions about oceanfront municipalities’ authority to regulate activities in public trust areas and due to suggestions that only the state has such authority, Emerald Isle Town Manager Frank Rush Jr. said in an email sent to about 20 municipalities in December.

Wrightsville Beach’s Board of Aldermen had the issue on the agenda for its Jan. 10 meeting,  Mayor David Cignotti said.

“We need more clarification on our beach strands to make sure that we do have the ability to enforce all our ordinances,” Cignotti said Friday, Jan. 4. 

Wrightsville Beach is unique in that part of the beach was conveyed to the town in 1939, but with all coastal towns there were still some different opinions about state owned property on the beaches and the ability to enforce ordinances, Cignotti said.

“We have struggled with some jurisdictional authority on our beaches,” said Carolina Beach Interim Town Manager Ed Parvin on Monday, Jan. 7. “This is not going to resolve all the issues, but it’s a step in the right direction.”

Parvin confirmed that Carolina Beach unanimously adopted the Emerald Isle resolution at its meeting on Tuesday, Jan. 8.

Kure Beach and Topsail Beach had planned to consider the resolution this month as well.

“All coastal towns are concerned about authority being curtailed,” Topsail Beach Town Manager Tim Holloman said on Jan. 7.

Surf City’s attorney was reviewing the resolution, town manager J. Michael Moore said Jan. 7.

“We are definitely considering it,” Moore said. “We’re looking at all the different … effects (that) could possibly come about by requesting such a thing.”

“It would be beneficial for the towns in light of what went on in Nags Head with the questions of the homes on the beach,” Moore added.

The issue involved some homes damaged by storms and erosion years ago, Nags Head Town Manager Cliff Ogburn said. 

Nags Head sought an abatement order against one structure, arguing it had deteriorated and had become a public nuisance. A trial court ruled in the town’s favor in 2011, but the North Carolina Court of Appeals reversed the order last year.

The defendant, Cherry Inc., had sought to dismiss the claim, arguing the state — not the town — has authority over public trust areas, according to a February 2012 Court of Appeals document.

“The question becomes what is permissible and what is not permissible and whose authority is it to enforce and regulate?” Ogburn said Jan. 7. “If a house can sit out in the ocean, it impedes your ability and my ability to enjoy the beach. Who’s going to regulate that? The town has taken action to do that. We strongly believe in a free and unencumbered beach for the use of the public.”

Nags Head’s Board of Commissioners planned to pass the resolution this month, Ogburn said.

Emerald Isle’s resolution includes suggested bill language for introduction by Rep. Pat McElraft, R-Carteret and Jones. 

Calls and an email to McElraft were not immediately returned. The General Assembly convened Wednesday, Jan. 9.

While private property often extends to the mean high water mark, North Carolina General Statute 77-20 establishes public trust rights on the ocean beaches defined as typical flat, dry sand beach between the dunes and the water, Rush’s email said.

Various state statutes provide municipal authority to regulate activities in the public trust areas of ocean beaches, the resolution said, adding that Emerald Isle and North Carolina’s other 20 oceanfront municipalities have historically regulated — and continue to regulate — activities in the public trust areas of ocean beaches to promote and protect the public’s health, safety and welfare. 

Examples listed in the resolution include public access, beach driving, beach horseback riding, dune protection, leash laws, smoking, litter bans and the protection of environmental habitats. 

“We just thought it would be helpful to have clarification going forward that we could regulate these things,” Rush said Wednesday, Jan. 2. “We don’t view this as seeking any new authority.”


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