• 57°

Court rules Duck beach access is private

A North Carolina Court of Appeals opinion issued April 6 says private beach accesses in Duck are private and not open to public use.

The case originated after Robert E. Hovey was taken into custody at Seabreeze Drive on May 29, 2019, and charged with second-degree trespass. Hovey maintained that the beach access had been deeded to the public years ago and the public was allowed free access. The Sand Dollar Shores Homeowners Association, Inc., disputed that claim and said it was all private property for use by homeowners only. A video of the arrest incident was shared on social media, drawing considerable attention.

Court documents show that Sand Dollar Shores is a development of 42 residential lots along Seabreeze Drive and recorded with the Dare County Register of Deeds in 1981. Sand Dollar Shores, Inc., was established nine years later and the Town of Duck, which includes Sand Dollar Shores, incorporated May 1, 2002.

After Hovey and his wife, Tanya, purchased a house across the highway from Sand Dollar Shores in 2002, they began renting it out on a weekly basis during the summer months, and started a beach equipment rental business to serve their residential renters and other vacationers, stated the court documents, which also said the Hoveys and their customers used the Sand Dollar Shores pedestrian walkway to get to the beach.

In April 2016 a Sand Dollar Shores, Inc., attorney wrote a letter to the Hoveys informing them, among other things, that the easement was dedicated for the use of Sand Dollar Shores, Inc. members only.

The Hoveys maintained that the plat map dedicating “all roads, alleys, walks, parks, and other sites to public or private use” made the easement open to the public and continued to use it.

A statement released by the Town of Duck shortly after the arrest explained that “The Town of Duck does not restrict an individual’s use of the public beach, but it does not own or maintain any beach access locations in the town. Because the accesses are privately owned and maintained, the Town cannot grant permission for their use and unauthorized use could be deemed trespass as it would with any other private property.”

In February 2020, the Hoveys prevailed in superior court with a ruling that Sand Dollar Shores beach accesses to the Atlantic Ocean had indeed been designated as open to public use.

The ruling was in line with others in North Carolina where courts have consistently ruled that beaches are public. However, by the time Duck was incorporated in 2002, all oceanfront property other than the U.S. Army Corps of Engineers Field Research Facility had already been platted as private property. Most beach accesses in Duck were located in subdivisions governed and maintained by homeowner associations.

The HOA appealed the Superior Court decision and, in an 18 page opinion, the Court of Appeals held that because a plat map fails to show an unambiguous intention to dedicate the walkway easement to public use, the trial court erred in granting summary judgment for the Hoveys.

The April 6 opinion says that although the plat map states an intention to dedicate “all roads, alleys, walks, parks, and other sites to public or private use as noted,” the document contains no note dedicating the easement as for public use.

It was noted also that while the public is entitled to walk on the beach, wade in the ocean and otherwise use the natural resources, there the boundaries of these properties, the land between the beach and public streets and highways belongs to private landowners and the court must uphold private property rights under the law. And, while the Hoveys are not barred from the beach, they could negotiate for access or, failing that, drive to nearby municipalities or any unincorporated areas in the county to the north and south that maintain public beach accesses, the document stated.

For various reasons stated, the Court of Appeals reversed the judgment of the trial court and remanded it back to the lower court with instructions to enter summary judgment for Sand Dollar Shores Homeowners Association, Inc.

READ ABOUT MORE NEWS AND EVENTS HERE.

RECENT HEADLINES:

Outer Banks Community Foundation accepting applications for Focus grants

Corridor in place to access Cape Point due to oystercatcher breeding

Business

Piers of the Outer Banks: Nags Head Fishing Pier

News

Kitty Hawk Town Council hears about youth fishing tournament; Perry will not run for re-election

News

North Carolina man hooks $1 million scratch-off prize

News

NC bill exempts lawmakers, others from concealed gun limits

News

States push jobless from virus recession to return to work

Crime

North Carolina man accused of sex crimes facing new charges

News

Nash County woman snags $200,000 prize from scratch-off ticket

Crime

Elizabeth City man arrested in Kill Devil Hills on firearm and drug charges

News

Kill Devil Hills public forum encourages community dialogue

News

Retention bonus for Home Health and Hospice workers approved

News

Weekly North Carolina gas update: Prices have gone up

News

Brief power outage set for four villages on Hatteras Island

Crime

Inmate in federal prison in North Carolina convicted of participating in mutiny

News

Lane closures due to cross pipe replacements this week in East Lake

Business

Maggie Easley named Outer Banks Hospital Employee of the Month for April

News

As vaccinations drop, North Carolina officials consider offering perks

News

North Carolina officials searching for stolen radioactive tool

Business

Chamber holds ribbon cutting for Village Realty’s Duck location

Lifestyles

COVID-19 testing calendared for Monday in Manteo

Business

Local law firm recognized with Attorney General’s Cup in Legal Feeding Frenzy

Crime

Las Vegas man pleads guilty to role in multi-million dollar North Carolina Medicaid fraud

Crime

Former North Carolina police chief indicted on 88 felony counts in evidence theft case

News

J-1 visa workers ‘not going to be a solution for the community this year’

Crime

North Carolina man sentenced to over 14 years in prison for methamphetamine-related charges