North Carolina Land Use Blog

In an important decision for coastal property owners, Town of Nags Head v. Cherry, Inc., No. COA11-931, the North Carolina Court of Appeals held that the Town of Nags Head does not have standing to enforce the State’s rights in the area of the beach known as the Public Trust. In that case, one in a series being pursued by the Town against the owners of beachfront property, the Town took the position that it could enact and enforce an ordinance which makes all houses and other structures located on the dry sand area of the beach (i.e., that located between the first line of stable vegetation and the mean high water mark) nuisances per se, and compel them to be demolished without paying any just compensation to their owners. The Town takes a broad view of the concept of the public trust, the basis of which is that the State owns the land from the mean high water mark to the open ocean and administers that land in trust for the benefit of the public. Although this doctrine is well-settled, the Town and certain academic commentators have put forth the proposition that in addition to this area seaward of the mean high water mark (i.e., the public trust area, or the wet sand beach), the dry sand beach also is burdened with certain “public trust rights” of general public access, and that any structure located in this area by definition interferes with those rights of access and therefore is a public nuisance. Although (astonishingly) a trial court judge agreed with the Town, the Court of Appeals unanimously disagreed and made it clear that whatever public trust rights may exist on the dry sand area of the beach, those rights belong to the State of North Carolina and only can be enforced by the State. Therefore, the Town lacks standing to enact or enforce the ordinance in question, and the trial court cannot enforce an order to remove a structure solely due to its location on the dry sand beach.

Importantly, the Court of Appeals did not elaborate on the existence or scope of the “public trust rights” the State may have on the dry sand beach, but noted only that whatever they may be, they are not an issue for the Town to be concerned with. In doing so, the Court once again put the issue of what – if anything – that is to be done with beachfront structures that have migrated onto the dry sand beach due to erosion, clearly into the lap of the State. Although the substance of the decision is not surprising given the prior existing law, it likely will bring no pleasure to the State Department of Environment and Natural Resources (“DENR”) and the Division of Coastal Management (“DCM”) , both of which have so far been unable to decide what to do about coastal erosion issues, including sandbags and other similar erosion control devices. Cherry Inc., makes it abundantly clear that those issues belong exclusively to DENR and DCM, and therefore that they will have the shoulder the burden of a solution on their own.