North Carolina Court Affirms Dismissal of Challenge to Public Access Rights

Fabrikant v. Currituck County, 621 S.E.2d 19 (N.C. Ct. App. 2005).

Stephanie Showalter

In a closely watched public access case, the North Carolina Court of Appeals recently upheld the dismissal of the landowners’ claims against Currituck County and several state resources agencies. Because the dismissal turned on procedure, the court avoided having to address the real issue - whether the public has access to privately owned dry sand beaches.

Until a couple of decades ago, Currituck County near Corolla, North Carolina was an isolated area of the Outer Banks. Lacking paved roads, access was generally gained by driving a four-wheel drive vehicle across the beach. In the mid-1970s, development began on Whalehead Club. Marketed as an exclusive, isolated beach community, most buyers were from out-of-state, many attorneys from the D.C metro area, New Jersey, and New York. The extension of paved roads into the area in the 1980s and ‘90s, followed by hotels, restaurants, and shops, resulted in a massive visitor influx.

In 1998, several property owners in Whalehead, fed up with sharing what they considered their private beach, filed suit claiming a right to prevent the public from using the beach in front of their houses. That year state officials estimated that on a typical Sunday 20,000 visitors were coming to the Currituck beaches.1 It’s likely that a few bad seeds pushed the Whalehead residents over the edge. Newspaper accounts repeatedly list the same complaints: noise, trash, strangers knocking on doors to use the bathroom, and “brazen” use of showers on decks or under the houses.2

North Carolina is a high water state. That means the seaward boundary of oceanfront property generally extends to the mean high water mark. Although the title to this land is in private hands, it has long been the position of the state that the area between the high water mark and the vegetation line, known as the “dry sand beach,” remains open to the public. The plaintiffs strongly disagree.3

Unfortunately the court never reached the issue of whether the public has a right to use the dry sand beaches for recreational purposes. The Court of Appeals affirmed the finding of the trial court that the plaintiffs’ claims were barred by the sovereign immunity doctrine, which precludes suits against a government without its consent. The plaintiffs argued that immunity was waived by N.C. Gen. Stat. § 41-10.1 which allows actions against the state to quiet title when the state and an individual “assert a claim of title to the [same] land.” The court found this provision inapplicable because none of the defendants had asserted a “claim of title to land.” North Carolina does not dispute that oceanfront property owners may hold title seaward to the high water mark. Its position is that the public must be permitted access regardless of the deed.

Because the court failed to reach the merits of the case, the extent of public rights remains unclear. The controversy is far from over, however, as the plaintiffs are likely to appeal to the state Supreme Court. A victory for the landowners could have significant ramifications, as about half of the North Carolina shoreline is private owned.

Endnotes
1. Martha Quillin, Public Beach or Private Land?, The News and Observer, Sept. 5, 1998.
2. Id. See also Jerry Allegood, Beachfront Landowners Lose Public Access Case, The News & Observer, July 23, 2003.
3. For a detailed discussion of shoreline property rights in North Carolina and additional background information on the Fabrikant litigation, see Joseph J. Kalo, The Changing Face of the Shoreline: Public and Private Rights to the Natural and Nourished Dry Sand Beaches of North Carolina, 78 N.C. L. Rev. 1869 (2000).