LEGAL 



TIDES 



beach below the high-tide line is public 

 property. According to property titles, the 

 dry-sand beach landward of the high-water 

 mark is privately owned, but beach-goers 

 have usually marked out their territory in the 

 dry sand without provocation. 



That may change soon, Clark says. The 

 booming population in coastal counties — 

 particularly Dare, Carteret and New Hanover 

 — puts increasing pressure on the same 



beach resources. Until early this century, 

 "there weren't many people in coastal North 

 Carolina, and there was lots of beach," Clark 

 says. "People were spread pretty thinly." But 

 on a cloudless summer day, people now 

 crowd the sand up and down the state's 230 

 miles of beaches. 



And few of these people stick to the 

 wet sand. Though the dry-sand beach may 

 not be included in the state's public-trust 

 holdings, coastal visitors and residents have 

 long used it for sunbathing, picnicking, 

 fishing and traveling. Some beachfront 

 property owners have objected to this in the 

 past, putting up fences or signs at the high- 

 tide line to keep the public off the dry-sand 

 beach, but the state has always intervened. 



"The public has been using the dry- 

 sand beach since the first colony was 

 established," says Donna Moffitt director of 

 the N.C. Division of Coastal Management. 

 The state's position is that long-time public 

 use of the dry sand constitutes an extension 

 of public-trust rights beyond the high-water 

 line, or an easement for public use of private 

 property. And until now, the fences or signs 

 have always come down. 



But in June 1998, a small group of 

 property owners in the Whalehead Club 

 subdivision on Currituck Banks filed a 

 lawsuit against Currituck County, the state of 

 North Carolina and the developers of their 

 subdivision in an effort to keep the public off 

 their private property. They claim that the 

 public's use of the dry-sand beach prevents 

 them from enjoying their property and that 

 public parking lots and walkways are in 

 violation of subdivision rules. 



The complaints listed in the lawsuit 

 include trash and human waste found in 

 back yards, trespassers who use private 

 showers under homes and strangers who 

 request the use of a telephone or bathroom. 

 If the state doesn't remove public beach 

 access to the area, the plaintiffs, who bought 

 their land with the assumption that the beach 

 was private, want to be paid for the public 

 use of the dry-sand beach. 



Gary Shipman, a Wilmington attorney 

 representing the Currituck plaintiffs, sums 

 up his clients' lawsuit in two words: property 

 rights. "One of the fundamental property 

 rights which property owners in North 



Carolina have is the right to exclude others 

 from their property, and our litigation seeks to 

 have the courts recognize that right," 

 Shipman says. "If the state wants the public- 

 trust doctrine extended, they will have to 

 'pay' for that, as it would then constitute a 

 taking of our clients' property without 

 compensation, in violation of the state and 

 federal constitutions." 



Though the homeowners also seek 

 judgment on several other issues, including 

 the subdivision's drinking-water supply and 

 paved roads, the quarrel over public beach 

 access is stealing the most headlines. 



"lithe state lost the case, there would be 

 a major negative economic impact from lost 

 tourism," says Moffitt. "Rental properties 

 behind the first row of houses would be 

 reduced in value, because the people there 

 would no longer have access to the beach." 

 Vacationers could face prosecution if they 

 trespassed on the privately owned dry-sand 

 beach. At high tide, wading or swimming 

 would be the only recreation available. 



The state is "vigorously defending its 

 position," says Moffitt. "We're arguing that 

 North Carolina citizens have always had 

 public-trust rights on our beaches. . . . People 

 have bought property along the coast with the 

 knowledge that the public uses the beaches in 

 this state." 



To make the state's position clear, the 

 General Assembly passed a bill on public 

 beach access shortly after the lawsuit was 

 filed. The bill declares the beach open for 

 public use from the first line of vegetation 

 seaward, due to the "frequent, uninterrupted, 

 and unobstructed use of the full width and 

 breadth of the ocean beaches of this State 

 from time immemorial." 



The bill's timing has raised some 

 eyebrows, but its intent is clear: to provide 

 resolution on a divisive issue. The ongoing 

 litigation highlights the need for court 

 interpretation of the state's position on public 

 beach access. 



"Laws are passed all the time. Many of 

 them are later overturned by a court deci- 

 sion," Clark says. "We need clarity on 

 something as important as the beach, which 

 so much of our coastal tourism depends on. 

 This is a question that has been hanging out 

 there a long time." □ 



COASTWATCH 27 



