Slavin v. Town of Oak Island, COA02-671, Filed: August 19, 2003 (____ NC App. ____ (2003-355))

Plaintiffs are oceanfront property owners in the Town of Oak Island who unsuccessfully appealed a summary judgment in favor of the town, which plaintiffs alleged had committed an unconstitutional taking of their beach access.

The U.S. Army Corps of Engineers conducted two beach renourishment programs in the town, one to restore a sea turtle nesting habitat and the other to replace sand that had been reclaimed over the years by the ocean during storms and heavy tides. Both projects involved placing new sand below the mean high water mark, thus creating a new mean high water mark seaward of where the mark was before the renourishment. In order to protect the newly-created dry-sand dune, the Town of Oak Island implemented a "Beach Access Plan," which involved fencing along the length of the dunes. Whereas Plaintiffs used to be able to directly access the ocean from their properties, they now must use designated public access points.

The cause of action against the Town alleged that the plaintiffs had a direct right of access to the ocean and that the Town’s plan constituted an unconstitutional taking of that right. The trial court granted summary judgment, and the property owners appealed.

Plaintiffs asserted on appeal that the Town was not entitled to summary judgment because it lacked the authority to enact the Access Plan or erect the protective fence. The argument was that the authority is vested solely in the State of North Carolina and the Department of Administration pursuant to the State Lands Act (N.C.G.S. 146-1 et seq)

The appellate court rejected the plaintiffs’ assertions. N.C.G.S. §146-6(f) vests in the State "title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of soil materials or sand." Despite that, the court held that nothing in the State Lands Act should be interpreted to limit the authority of a municipality to exercise its police power by enacting regulations protecting a local public beach.

Plaintiffs also asserted on appeal that North Carolina law recognizes a littoral property owner’s unlimited right to access adjacent water, a right upon which the Town could not infringe without adequate compensation. Relying primarily on Capune v. Robbins, 273 NC 581, 588 (1968), the Court rejected that argument as well, ruling that a littoral property owner’s right of access to the ocean is a qualified one subject to reasonable regulations. The court also relied on prior holdings that "appurtenant littoral rights are subordinate to public trust doctrines," Weeks v. N.C. Dept. of Nat. Resources and Comm. Development, 97 N.C. App.215, 226, disc. rev. denied, 326 N.C. 601 (1990). The Court noted that Plaintiffs did not argue that the regulation was unreasonable, but rather that its mere existence constituted a taking. Therefore, the Court concluded, the plaintiffs’ argument that they have an unlimited right of access is incorrect as a matter of law and therefore the lower court’s granting summary judgment to the Town was proper.

Proponents of the Town’s Access Plan argue that the plaintiff’s beachfront properties are protected by the renourishment efforts by ensuring that the ocean will not wash up to reclaim the properties altogether. In the 1960s some residents of Carolina Beach saw their oceanfront lots become completely washed away "by successive storms, tides, winds and other natural forces." Carolina Beach Fishing Pier, Inc. v. The Town of Carolina Beach, 277 N.C. 297 (1970). When the Town constructed a beach erosion seawall, completely covering where plaintiff’s lots had been and vesting title to the new lands in the State, he alleged that the Town had engaged in a complete taking of his property. The Supreme Court held that the ocean itself, by virtue of its gradual westward movement in Carolina Beach, had divested plaintiff’s title to his lots. The federal Submerged Lands Act of 1953 vests title to all submerged lands within three miles of the shoreline in the states. In addition, the NC Legislature’s 1963 Session Laws, Chapter 511 ("An Act Relating to the Title to the Land Built Up and Constructed in the Town of Carolina Beach…") established fee simple title to the Town of Carolina Beach in all lands restored east of a platted building line. Because plaintiff’s land had ceased to exist, and Carolina Beach had raised land from below navigable water for a public purpose, the newly created beach area belonged to the Town. (It should be noted that the 1963 Session Laws incorrectly vested title to the Town of Carolina Beach to the low-water mark, rather than the high-water mark, but when enacted it repealed all laws – including GS 146-3(1) – inconsistent with its provisions.)

Courts in North Carolina have consistently held that an owner of land fronting navigable waters does not have an unfettered right of access. In Capune v. Robbins, 273 N.C. 581, the defendant owner of a commercial fishing pier threw bottles at plaintiff, who was attempting to paddle a board under the pier. The court held that a littoral owner must keep any pier area unobstructed over the entire width of the foreshore, such that the public will be able to walk under it or boats to pass under it (depending on the tide), and had no right to keep the public out. In Orin Haywood Weeks v. NC Dept. of Nat. Resources and Community Development, 97 N.C. App. 215, the court reasoned that a littoral property owner’s rights "derive from two distinct properties: 1) the principal estate of land extending to the shoreline…, and 2) the appurtenant estate of submerged land… benefiting the principal estate." Weeks was another plaintiff who alleged a taking after his request to build a 900-foot pier was denied. The court analyzed the takings issue by first determining whether the goals of the denial was within the scope of DENR’s police power and then whether DENR acted reasonably.

A takings argument in a littoral case can succeed only if the plaintiff can prove that the government deprived her of all practical uses of her property and it renders the property of no reasonable value. Like the plaintiff in Weeks, the plaintiffs in Slavin would have a difficult time convincing a court that their properties were left without practical use or reasonable value simply because they no longer have direct access from their homes to the ocean.

Without relying on a takings analysis, however, it would appear the Slavin court could have put the issue to rest by simply relying on the State Lands Act. The renourishment projects at Oak Island fall squarely within the Act. The State holds the new beach "open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage." §146-6(f) Moreover, it would seem obvious that the State and local municipalities have an obligation to preserve the state lands, and fences are widely used for maintaining dunes. This is not a case of landowners going to the expense of renourishing their land to the high water mark.

The plaintiffs in Slavin have filed a petition for writ of certiorari to the North Carolina Supreme Court, but as of the print deadline there was no response from the Court. Regardless of whether the Court grants cert, this issue will no doubt be litigated again as we see the renourishment of other beaches hit hard by Hurricanes Floyd and Isabel.