DATE: Saturday, July 26, 1997               TAG: 9707240272

SECTION: REAL ESTATE WEEKLY      PAGE: 16   EDITION: FINAL 

COLUMN: ABOUT THE OUTER BANKS 

SOURCE: Chris Kidder 

                                            LENGTH:   94 lines

THE BEACH BELONGS TO EVERYONE

Real estate ads not withstanding, there's no such thing as a private beach on the Outer Banks. In theory, title to North Carolina's beaches belongs to the state - and its people.

Like much of our country's 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 that land and holds 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 hazards, 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 to those places. ``Right of passage'' hasn't been fully defined by the courts. But the commonly accepted interpretation is that anyone can walk over the dry sand beach without question. The law probably allows you to lie down on a towel there but would draw the line at something more intrusive, like putting up a volleyball net, without permission from the homeowner.

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 backyard 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 to Corolla, the beaches are, if not legally, then de facto, private. With the exception of several county-maintained beach 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 increase 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 - and sell for more.

William Kaufman and Orrin H. Pilkey Jr., authors of ``The Beaches Are Moving,'' claim the effect of public access is two-fold. 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.''

The conundrum of giving up property value today to gain a better benefit tomorrow is part of the on-going beach controversy at Sandbridge, just north of the North Carolina border.

Although Virginia, like North Carolina, claims ownership of the wet sand beach there are always exceptions. In Sandbridge, owners hold deeds which purport to give them ownership of the beach to the low tide mark.

While a majority of Sandbridge property owners have voluntarily ceded easements to the city of Virginia Beach to clear the way for a beach renourishment project, several property owners have refused to do so.

Whether the Sandbridge deeds would stand as written in a court of law is uncertain. But one thing appears to be clear: If nothing is done to stop beach erosion, the point will be moot - and there will be no beach for anyone to own.

Some states have upheld private ownership of beaches. Others have forfeited their beaches to nature while maintaining private property with seawalls and jetties. Some allow beaches to be cordoned off and charge for their use.

One of the Outer Banks' greatest assets has been its free and accessible beaches. Except for the Army Corps of Engineers' research pier in Duck, be assured that you could get on the beach at Hatteras Village and walk all the way to the Virginia border without trespassing (if, at high tide, you don't mind getting your feet wet now and then).

Enjoy!

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