Ad Spot

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

News

Enrollment for North Carolina Medicaid managed care ending

News

New permit facilitates transfer of shellfish for restoration projects

Crime

North Carolina man found guilty, sentenced to more than 100 years in prison in attack on college students

Crime

North Carolina man sentenced to 20 years in prison for robbery, carjacking and kidnapping

News

Colonial Pipeline restarts operations days after major hack

Currituck

Currituck commissioners approve design proposal for Moyock Elemntary School expansion project

News

Duck reviews options for dogs on the beach, recognizes firefighter

News

Scramble on for new fuel routes after Colonial Pipeline hack

News

Beaufort County woman finds ‘the lucky one’ to win $200,000 prize on scratch-off ticket

News

Tricolored heron: Looking for next meal?

News

Dare commissioners consider spending extra money now

Lifestyles

Dare County Library reopens facilities at all three locations

News

North Carolina football player, brother identified as boating accident victims

Crime

Man and woman charged after North Carolina gas station line fight

Crime

North Carolina man sentenced to 18 years in prison for methamphetamine-related charges

News

North Carolina man wins $100,000 Cash 5 jackpot

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