THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: SUNDAY, June 19, 1994 TAG: 9406160186
SECTION: CAROLINA COAST PAGE: 40 EDITION: FINAL
SOURCE: Chris Kidder
DATELINE: 940619 LENGTH: Medium
When I lived in the Midwest, I swore I could hear the ocean calling to me. Now that I can see the ocean from my office window, have I gone deaf or turned out its siren song? I have nightmares about going to the beach and finding a big sign that says ``Closed.''
{REST} Whether I go to the beach often enough is a personal matter. As for the beach being closed, that's a different story. In North Carolina, the beach belongs to the people, all the people. The beach itself may come under attack from man's carelessness and neglect or nature's fury, but our right to use what's left is pretty well carved in stone.
Like much of our real estate law, ownership of the beach is based on English common law. The principle of sea and shore being res communes - things of common use - goes back to Roman times.
The law sees the beach in three parts: the wet sand beach made up of land between the mean low tide mark and the high tide mark; the dry sand beach, land between the high tide mark and the vegetation line; and, the land between the vegetation line and the nearest road.
In North Carolina, the first part - the wet sand beach - cannot be privately owned. The state owns it in trust for the public.
Private ownership begins with the dry sand beach. Ownership of this part of the beach has its limitations, but the responsibilities aren't diminished: One must pay taxes, maintain the property to prevent public hazard, and do all the other things required by law of property owners.
Even though the dry sand beach is privately owned, the public has a right of passage. According to Webb Fuller, Nags Head town manager, ``right of passage'' hasn't been fully defined by the courts. Fuller's interpretation, backed up by other sources I checked, is that the public can walk over the dry sand beach without question. Can folks lie down on a towel? ``Probably yes,'' says Fuller. ``Put up a volleyball net? Probably no. Unless they have permission.''
Next time high tide runs you off the public beach and beyond the high tide line, remember that you're on someone's private land. How would you like it if hundreds of thousands of people had the right to tramp through your back yard each summer?
A key issue on the Outer Banks is access to the public beach. While the law allows the public to use the beach, it doesn't mandate access.
The third part of the beach, the area between the vegetation line and the road, is private property without a public right of passage. An owner doesn't have to let anyone walk across it.
Indeed, property owners who habitually allow public access across their property risk losing the right to limit access in the future. Courts in other states have ruled that repeated public use implies ``dedication'' of the land to public access. Once this access is allowed, it can be tough to take away.
Outer Banks communities view public access to the beach as a serious responsibility. Nags Head, Kitty Hawk and Kill Devil Hills provide dozens of improved access points with boardwalks, some with restrooms and showers, some handicapped accessible and even more unimproved dune crossings.
Other communities take a different view of access. From Southern Shores and Duck north, the beaches are, if not legally, then de facto, private. With the exception of two county dune crossings at Corolla, there is no public access on the northern beaches. Property owners in these communities limit use of their parking lots, boardwalks and crossovers to themselves and their guests.
On Hatteras and Ocracoke islands, the National Park Service maintains several public access areas as part of the Cape Hatteras National Seashore.
The dream of walking in solitude along the water's edge has universal appeal. You'll never see an advertisement that reads ``Come enjoy our crowded beaches.'' No one would deny that privacy and protection from public use increases the value of oceanfront property.
But while the dream of the beach property owner is privacy, the general public wants access. Easy beach access adds value to homes not on the oceanfront. Off-the-beach houses with easy beach access rent better, sell for more.
William Kaufman and Orrin H. Pilkey Jr., authors of ``The Beaches Are Moving,'' claim the effect of public access is twofold. First, they say, the value of adjoining properties will go down, or at least stabilize. But, ``when the public gains access, the value lost by shorefront landowners reappears, many times multiplied, as a benefit attached to every home in the community.''
by CNB