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legal tides - North Carolina Coastal Resources Law_ Planning and


									               LegaL Tides
                From the North Carolina Coastal Resources Law, Planning and Policy Center                               •   Winter/Spring 2005

         W     elcome to the inaugural issue of      of the Sea Grant program, and the coastal                             Legal Tides is a free publication
   Legal Tides, a publication from the new North     connection provided by the Coastal Studies                     distributed to interested coastal citizens.
   Carolina Coastal Resources Law, Planning          Institute to address contemporary coastal issues.              Primarily written for a legal and policy
   and Policy Center.                                       The increasing development pressure on                  audience, we hope to craft the publication
         The center was established in 2004          coastal lands and waters raises issues that involve            to appeal to all readers. Please, let us know
   through a cooperative agreement by the UNC        federal, state and local laws, regulations and                 what you think.
   School of Law, North Carolina Sea Grant           ordinances. Legal Tides will explore legal and                        If you would like to continue to receive
   and the UNC Coastal Studies Institute to          planning issues as they relate to North Carolina’s             Legal Tides, contact Walter Clark at walter_
   provide timely and usable legal and planning      coastal area and the Atlantic Ocean. Articles will    or (919) 515-1895. Or,
   information to coastal managers, communities,     present a balanced and informative analysis of                 write to: Legal Tides, North Carolina Sea
   businesses and citizens. The center serves        issues. We also will attempt to keep our readers               Grant, Box 8605, N.C. State University,
   the citizens of North Carolina by bringing        up-to-date on the latest publications, workshops and           Raleigh N.C. 27695-8605. Also, please let
   together the research resources of the law        conferences that pertain to coastal and ocean law              us know if you would prefer receiving Legal
   school, the research and outreach experience      and policy.                                                    Tides in electronic format.

              The Rights of Oceanfront Property Owners in the 21st Century
                                                       By JOsePh KalO and WalTeR ClaRK

      M“      embership has its privileges” — and                                                                   our already crowded shores, an understanding
                                                                                                     Scott Taylor

so does the ownership of waterfront property.                                                                       of the scope and extent of the private and public
With the ownership of waterfront property comes                                                                     rights in ocean and inlet shorelines is becoming
a set of unique property rights. But, unlike other                                                                  more important and pressing.
types of property, waterfront property abuts a                                                                             In the next two issues of Legal Tides, we will
public resource infused with public-use rights.                                                                     explain the nature and evolution of unique rights
Consequently, the special rights accorded                                                                           possessed by ocean- and inlet-front property
waterfront property owners must be balanced                                                                         owners. These rights, often referred to as littoral
with such public rights as boating, swimming                                                                        rights, have not been explored as thoroughly as
and fishing.                                                                                                        riparian rights — a term that is often associated
       Identifying these special private rights of                                                                  with landowners along rivers and sounds.
use is not always easy and has been the source of                                                                          In this first issue of Legal Tides, Joseph
controversy since the founding of our nation. Nor                                                                   Kalo, Graham Kenan Professor of Law at the
is all waterfront property treated the same. The                                                                    University of North Carolina Law School, and
precise nature and scope of the private rights                                                                      Walter Clark, Coastal Communities and Policy
may vary depending on whether the waterfront                                                                        Specialist at North Carolina Sea Grant, will begin
property is oceanfront, inlet front, soundfront,                                                                    the journey by explaining the origin and evolution
riverfront or lakefront.                                                                                            of littoral rights. In the next issue we will examine
       As we search for ways to respond to storms,                                                                  how “artificial” additions to shorelines impact
coastal erosion and increasing demands upon                                                                         shoreline ownership and littoral rights.

                 A Collaboration of North Carolina Sea Grant, UNC School of Law and UNC Coastal Studies Institute
Introduction                                                                                                                             Who Is a littoral

                                                                                                                               Scott Taylor
       For much of North                                                                                                                 Owner
Carolina’s history, the                                                                                                                         The key to any
rights of oceanfront                                                                                                                     discussion of littoral rights
property owners have                                                                                                                     is an understanding of
been loosely defined. This                                                                                                               who is a littoral owner.
was due in part to the                                                                                                                   It is not necessarily true
slow pace of development                                                                                                                 to assume that anyone
of much of the state’s                                                                                                                   owning “oceanfront” or
oceanfront shoreline.                                                                                                                    “inlet front” property is a
Consequently, there were                                                                                                                 littoral owner with littoral
fewer opportunities for                                                                                                                  rights. Whether someone
conflict between oceanfront                                                                                                              is a littoral property owner
property owners, the state                                                                                                               depends upon whether
and the general public.                                                                                                                  the ocean or inlet forms
All that changed in the                                                                                                                  at least one boundary of
latter half of the 20th                                                                                                                  the property. In order to
century. In the past 50                                                                                                                  be a littoral owner, the
years, the barrier islands                                                                                                               oceanfront owner’s title
and ocean beaches have                                                                                                                   must run to the mean high
seen a marked increase in development. This                       For much of North Carolina’s history,       water mark.3 If the mean high water mark is not
has occurred in conjunction with severe erosion         the rights of oceanfront property owners have been    one of the legal boundaries it is not littoral property
caused by hurricanes, nor’easters, sea level rise and         loosely defined. This was due in part to        and there are no littoral rights associated with it,
man-made activities, such as dredging and building                                                            even if the land appears to front the ocean or inlet.
                                                             the slow pace of development of much of
jetties.                                                                                                             If the property is littoral, then the property
                                                                    the state’s oceanfront shoreline.
       The waters of the Atlantic now are lapping at                                                          owner has the legal right of immediate and
the foundations of million-dollar oceanfront homes,                                                           direct access to the ocean. It is this feature that
condominiums, hotels and businesses. The result is      in Shepard’s Point Land Co. v. Atlantic Hotel,2       commands the premium typically paid by investors
the demand that the state protect these investments     listed the rights associated with the ownership of    for oceanfront property. But, this right exists only
by re-establishing erosion-prone beaches through        North Carolina waterfront property as:                as long as the oceanfront property owner is a
beach nourishment projects or by permitting                   • The right to be and remain a littoral or      littoral owner. Therefore having and maintaining
owners of threatened structures to build protective     riparian property owner and to enjoy the natural      the mean high water mark as one boundary is
seawalls or otherwise harden the shoreline. In          advantages conferred upon the land by its             important to ocean- or inlet-front property owners.
light of these ongoing changes, it is timely and        adjacency to the water;
appropriate to take a serious, detailed look at the           • The right of access to the water, including   littoral Ownership, Moving shoreline
littoral rights of oceanfront property owners and       a right-of-way to and from the navigable part;               The ocean and inlet shorelines are in constant
how those rights are balanced with the rights of              • The right to build a pier or “wharf out”      motion, expanding and contracting through natural
other littoral owners and the needs of society.         to the navigable water, subject to any state          cycles and processes. The high water mark may
                                                        regulations;                                          be in a very different location from the day the
The Origin of littoral Rights                                 • The right to accretions to land; and          property is purchased to a few weeks or years
      The concept of littoral and riparian rights             • The right to make reasonable use of the       later. Traditionally, title to the area landward of the
is a product of evolving 19th century American          water flowing past the land.                          mean high water mark is in the oceanfront owner
jurisprudence. At the beginning of this evolution,            Coastal conditions have changed in the 100      and title to the area seaward of that mark is held
waterfront property owners possessed no special         years since the Shepard’s Point decision. With        by the state as public trust submerged lands.4 So
rights.1                                                these changes have come new court decisions           how is an ocean property line determined in this
      Owning waterfront property made it easier to      and laws affecting the rights of coastal property     dynamic environment? As a general common law
gain access to the water, but access could be cut off   owners. Consequently as we begin the 21st             rule, when natural cycles and processes result in
by the state at any time without compensation           century, two important questions arise:               additions (accretions) to the beach, the increase
      By the beginning to the 20th century, this had          • Does the traditional list of rights           belongs to the oceanfront owner to whose shoreline
completely changed with the law supporting the          enumerated in Shepard’s Point accurately describe     the accretions adhere; if the cycles result in erosion
view that waterfront property owners possessed          the rights of ocean- and inlet-front property         of the shoreline, then the oceanfront owner sustains
unique and valuable rights of which they could not      owners in North Carolina today?                       the loss. In other words, the oceanfront property
be deprived without compensation.                             • Have modern uses of oceanfront property       owner’s boundary is never fixed, but is always a
      In 1903, the North Carolina Supreme Court,        given rise to any new rights?                         shifting, ambulatory boundary line — moving as

                                                   Page 2     •     LeGAL TIdeS       •   Winter/Spring 2005
natural coastal processes change the contours of       77-20(a) create a uniform approach to all natural        seaward boundary regardless of changes in the
the shoreline and the intersection of the mean high    changes in ocean shorelines. NCGS 146-6(a),              contours of the shoreline and regardless of whether
water mark with the shore.                             states:                                                  the changes are the product of processes of erosion
                                                              If any land is…by any process of nature…          and accretion or the result of avulsion.
exception to Common law                                raised above the high water mark of any navigable              Standing alone section 77-20(a) may appear
       Traditional common law rules do not always      water, title thereto shall vest in the owner of that     inapplicable to inlet front property because
insure that the mean high water mark will remain       land which, immediately prior to the raising of the      technically such property does not “adjoin the
the ocean- or inlet-front boundary. If the accretion   land in question, directly adjoined the navigable        ocean.” However, a 1998 legislative change in
or erosion of the shoreline is slow and gradual, the   water…                                                   section 77-20 suggests that the word “ocean”
mean high water mark (as noted above) moves                   Any “process of nature” includes hurricanes,      now includes “ocean inlet waters.” In 1998, the
with those changes. But the traditional common         nor’easters, wind and wave action and is not             General Assembly amended section 77-20 by
law rule is different when shoreline change is the     limited to slow, gradual additions to the shoreline.     adding subsections (d) and (e). These sections
result of a sudden, dramatic shift brought about       Therefore, this statute clearly changes the common       define the term “ocean beaches” and affirm the
by the hammering of waves from a hurricane             law avulsion rule governing additions to shore-          public’s common law right to use ocean beaches.
or nor’easter. In legal terms this shift is called     lines.                                                   Section 77-20(e) defines “ocean beaches” as “the
avulsive change. According to common law,                     But what happens when a storm erodes 50           area adjacent to the ocean and ocean inlets.” This
when sudden, powerful and natural forces cause a       feet of the shoreline? Under the traditional rule,       suggests that the General Assembly intended the
sudden and perceptible change in the contours of       the property line would be where it was before the       term “ocean” as used in section 77-20(a) to include
the shoreline, the seaward boundary of ocean- or       storm — 50 feet out in the water and the ocean- or       ocean inlet waters.
inlet-front property does not move.                    inlet-front owner would own 50 feet of submerged               There is no reasoned basis to distinguish
       So what would this mean if, for example,        land. But this traditional rule no longer applies        ocean- and inlet-front property, especially since
during a storm fifty feet of sand is added to          to oceanfront property. NCGS 77-20(a) states in          the tidal waters of the Atlantic flow past each, both
the beach? According to the traditional rule,          plain, unambiguous language that the “seaward            are subject to the same storm and wind action, and
the oceanfront owner would not own the new,            boundary of all property..., which adjoins the           the demarcation between the two is a somewhat
expanded 50 feet of beach. Instead, the owner’s        ocean, is the mean high water mark.” In other            arbitrary determination of where the ocean ends
oceanfront property line would remain where it         words the mean high water mark remains the               and the inlet begins.5 Therefore a uniform rule
was before the storm. In such a circumstance, the                                                               should be applicable to ocean- and inlet-front
ocean no longer would be the seaward property              The ocean and inlet shorelines are in constant       property.
boundary and technically, the owner no longer          motion, expanding and contracting through natural              If section 77-20(a) is not applicable to inlet
would be a littoral owner and would not possess        cycles and processes. The high water mark may be         front property, additions to the shoreline would
any littoral rights. So, according to traditional                                                               belong to the owner of the inlet front property
                                                       in a very different location from the day the property
common law, avulsive changes could result in                                                                    based on subsection 146-6(a) which does not
the loss of arguably the most valuable feature              is purchased to a few weeks or years later.         distinguish between property adjoining the ocean
of oceanfront property                                                                                                                 and property adjoining inlets.
ownership — direct contact                                                                                                             Arguably, however, if 77-20
                                                                                                                              Scott Taylor

with (and access to) the                                                                                                               (a) does not apply, an avulsive
ocean. The addition to the                                                                                                             loss of shoreline might leave
shoreline would belong                                                                                                                 the inlet property owner
to the state and be a part                                                                                                             with title, subject to public
of the state’s public lands                                                                                                            trust rights, to newly created
consequently destroying the                                                                                                            submerged lands.
littoral owner’s right of direct
access to the ocean.                                                                                                                         The loss of all littoral
                                                                                                                                             land and Rights
legislative Changes,                                                                                                                               Sometimes gradual
Traditional Rules                                                                                                                            erosion, a hurricane, or a
      Fortunately, state                                                                                                                     combination of both may
legislation in the 20th century                                                                                                              result in ocean or inlet waters
discarded the avulsion rule                                                                                                                  moving over and covering an
with respect to additions to                                                                                                                 entire lot. Unless the ocean-
the shorelines of ocean- and                                                                                                                 or inlet-front property owner
inlet-front property. North                                                                                                                  can get permission from the
Carolina General Statutes                                                                                                                    state to fill and recover the
(NCGS)146-6(a) and                                                                                                                           land, title is likely lost with

                                                  Page 3     •   LeGAL TIdeS        •   Winter/Spring 2005
the “former” owner losing all littoral rights. The       policy now exists to provide ocean- and inlet-front      Private Rights to the Natural and Nourished Dry
owner of the next piece of property landward             owners some assurance as to the seaward boundary         Sand Beaches of North Carolina, 78 N.C.L.Rev.
of the submerged land becomes the oceanfront             of their property. Considering continuously shifting     1869 (2000).
owner and is vested with littoral rights. This is        ocean and inlet shorelines, this is important, not              4
                                                                                                                           A. Daniel Tarlock, The Law of Water
known as the rule of promotion.6 If, in the future,      only for oceanfront owners, but also for state           and Water Resources, sec. 3:35, pp 3-55 – 3-59
there were natural additions to the shoreline,           managers as they attempt to ascertain the rights         (2003).
those additions would belong to the new littoral         of the public to use one of the state’s greatest                5
                                                                                                                           The demarcation between the ocean
owner not the former one. The lot once lost is not       resources — our ocean beaches.                           and inlet is determined by the COLREGS
resurrected by new additions to the shoreline.                                                                    (International Regulations Preventing Collisions
                                                         end notes                                                at Sea). See Advisory Opinion concerning
Conclusion                                                     1
                                                                 John Lewis, A Treatise of the Law of             ownership of dredged fill and accretions on
      As the 21st century begins and North               Eminent Domain in the United States, sec. 94, p.         Bogue Banks at Bogue Inlet, Office of the
Carolina confronts the challenges of increased           116-17 (1907).                                           Attorney General, September 15, 2003, n.1.
development along erosion-prone beaches,                       2
                                                                 132 NC 517, 44 SE 39, 46 (1903).                        6
                                                                                                                           North Carolina law is not totally clear on
the legal issues of determining private rights                 3
                                                                 It should be noted that ownership of the dry     this issue. It appears that the state follows the
and delineating state responsibilities become            sand beach does not mean the owner has a right to        majority common law rule that states that once a
increasingly complex. In some instances, the             exclude the public from the privately owned dry          waterbody moves across the fixed boundary of
complexity of the issues has compelled the               sand beach lying above the mean high tide line. The      non-littoral land that land is promoted to littoral
state to move beyond the traditional common              State of North Carolina contends that the public         status and fixed boundary no longer exists.
law in search of uniform answers. Determining            has the right to use all the natural dry sand beaches    Gould on Waters, section 255, p. 308 (3d Ed
ownership boundaries for ocean and inlet                 of the state. The validity of this contention is the     1900). Application of the promotion rule is
shorelines is one of these instances. With the           subject of ongoing litigation. See Joseph J. Kalo,       consistent with the reading of relevant statutes
introduction of state legislation, a fairly consistent   The Changing Face of the Shoreline: Public and           (NCGS 77-20) and sound policy.

               In the next edition                                                               Want to Know More?
    In the next issue of Legal Tides we will                 For an in-depth legal analysis of the issues covered in this and the next edition of Legal Tides,
examine the effect of artificial additions to the            look for the upcoming article in the North Carolina Law Review by Joseph J. Kalo. The article
 shoreline on property ownership and littoral                is titled North Carolina Oceanfront Property and Public Waters and Beaches: The Rights of
   rights. With beach nourishment projects                   Littoral Owners in the 21st Century. It will appear in Volume 83, Issue 6 of the North Carolina
 becoming more commonplace as a means                        Law Review to be published in early 2005. For additional reading on this subject, see Joseph
 of protecting oceanfront property, knowing                  J. Kalo, The Changing Face of the Shoreline: Public and Private Rights to the Natural and
 the impact of artificial additions to property              Nourished Dry Sand Beaches of North Carolina, 78 N.C.L.Rev. 1869 (2000).
    ownership and littoral rights is critical.

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