10/2/20: TOWN COUNCIL POISED TO APPROVE ASKING OCEANFRONT PROPERTY OWNERS TO GRANT PERPETUAL AND IRREVOCABLE BEACH NOURISHMENT EASEMENTS TO TOWN, AUTHORIZING IT TO PERFORM BROAD, EXTENSIVE, AND ILL-DEFINED ‘EROSION CONTROL’ TASKS.

Homeowners on Seventh Avenue have complained to the Town Council about the width of their beach.

The Town Council will consider Tuesday a resolution authorizing Town staff to obtain permanent “beach nourishment easements” voluntarily from Southern Shores oceanfront property owners and a budget amendment authorizing the payment of $32,100 in legal fees to accomplish this acquisition, according to meeting packet materials posted on the Town website.

A draft of the proposed easement prepared by Town Manager Cliff Ogburn and Town Attorney Ben Gallop supports the Town essentially seeking a condemnation of oceanfront property by voluntary consent from affected owners for the purpose of doing whatever it wants in the interest of “erosion control and storm damage reduction.”

You may access the meeting packet, which contains the draft easement, here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2020-10-06.pdf

The Council will meet Tuesday, Oct. 6, at 5:30 p.m. in the Pitts Center. The public may attend the meeting in person, subject to facial-masking and social-distancing, or join via Zoom. (See below.) The agenda, which The Beacon previewed earlier, is the first page of the meeting packet.

Mr. Ogburn and Mr. Gallop propose to procure perpetual, irrevocable, nonexclusive, and assignable grants from oceanfront property owners of “ambulatory easements” and “right-of-ways” in advance of an estimated $16 million 2022 beach nourishment project  that the Town Council has only said it will “pursue.”

Under North Carolina law, oceanfront property owners own the dry sand area of the beach, but their ownership is subject to the public’s right of access. The beach is said to be held in trust by the State for the public’s enjoyment. It is the dry sand area to which the beach-nourishment easements would apply.

At no time has the Council selected a nourishment project “option” from among those recommended to it by the Town’s coastal engineering consultant, Coastal Protection Engineering of North Carolina, Inc., formerly known as APTIM. It has only voted to “pursue” beach nourishment.   

Despite this omission, the Council on July 21 unanimously gave Mr. Ogburn the go-ahead to try to obtain easements voluntarily from oceanfront owners for its project, giving no instructions on the language or reach of the easements.

As is customary with this Town Council, it signed off to staff, with the expectation that the Town Attorney would provide legal advice and guidance.

We were surprised to read that the draft easement being floated is for a perpetual and irrevocable grant of legal rights to the Town, not for a 10-year easement, like Nags Head initially used with many oceanfront property owners for its 2011 nourishment.

Mr. Ogburn, who started his job in Southern Shores in June, served as Nags Head town manager for 11 years, including during its two beach nourishment projects, the first of which was in 2011.

Southern Shores does not have, nor has it ever had, the beach-erosion problems that plague Nags Head.

Pursuant to the draft, any such easements that Southern Shores property owners agree to will run with the title of their properties “in perpetuity.”

If property owners refuse to voluntarily grant the Town the rights it seeks, the Town cannot yet acquire these rights by “quick-take” action—despite the Council’s unanimous approval of this method of acquisition this summer—because the N.C. General Assembly has not yet extended to Southern Shores this power of accelerated eminent domain. (See N.C. General Statutes sec. 40A-3(b1); and The Beacon, 7/20/20 and 7/27/20.)

The Town would have to use the process of standard, not accelerated, eminent domain in order to seize control over such property, and Mr. Gallop’s firm, Hornthal, Riley, Ellis & Maland, LLP, which prepared the estimated legal budget for the acquisitions, would then be padding the bill it charges Southern Shores taxpayers.   

The firm’s $32,100 budget is based on easement acquisitions from the owners of 162 Southern Shores parcels, according to the meeting packet. Full disclosure: Thanks to our parents, my siblings and I own three of them, two of which are undeveloped, vacant lots.

DETAILS OF THE DRAFT EASEMENT

The draft easement prepared by Mr. Ogburn and Mr. Gallop defines the easement area in several ways. We believe that all of them require a lawyer’s interpretation to assist a property owner in understanding precisely what he or she would be relinquishing—without promise of any compensation—if he/she grants an easement.

Generally speaking, the easement area sought by the Town is that “portion of property” located between:

  1. “the mean high water mark of the Atlantic Ocean, and
  2. “the landward toe or the Frontal Dune or Primary Dune.”

“Frontal dune” is further defined in the document as “the first mound of sand located landward of the Ocean Beach [which is also elaborately defined] having sufficient vegetation, height, continuity and configuration to offer protective value.”

“Primary Dune” is “the first mound of sand located landward of the Ocean Beach having an elevation equal to the mean flood level (in a storm having a one percent chance of being equaled or exceeded in any given year) for the area plus six feet. The primary dune extends landward to the lowest elevation in the depression behind that same mound of sand (commonly referred to as the dune toe).”

In the absence of a “discernible”—a word the document repeatedly misspells as discernable—Frontal Dune or Primary Dune, according to the draft, the area shall be the area located between:

  • “the mean high water mark of the Atlantic Ocean, and
  • “the waterward edge of any Permanent Structure located on the property as of the date of this Easement.”

We will not trouble you with the lengthy definition of “Permanent Structure,” but we will note that it does not include an “Improved Dune Walkover Access,” which an owner would be free to build, subject to the usual Town permitting process.

Further, in the absence of a discernible “Frontal Dune or Primary Dune or a Permanent Structure,” the easement area shall be the property located between:

  • “the mean high water mark of the Atlantic Ocean, and
  • “a northern and/or southern extension of the western boundary of the easement area for the property or properties adjoining the Property on the north and/or south whose comparable easement areas have been established using either the Frontal Dune of Primary Dune or a Permanent Structure located on such adjoining property (the “Easement Area”).

The draft easement also requires an oceanfront property owner to grant the Town a “nonexclusive pedestrian only access easement across any portion of the property for the purpose of permitting Town’s inspection and, if necessary, observation, maintenance and repair of the Town’s work and activities within the Easement Area.” (How often might “inspection, observation, maintenance and repair” occur and now intrusive may these actions be? There is no way to know.)

What the draft easement says the Town, its successors and assigns, and other federal, state, and county government bodies, agencies, and departments may do on such oceanfront property, once it has procured the requisite easements, is broad, extensive, and in some of the legal language, ill-defined and potentially invasive. And we quote:

“Town may use the Easement Area to evaluate, survey, inspect, construct, preserve, patrol, protect, operate, maintain, repair, rehabilitate, and replace a public Ocean Beach, a dune system, and other erosion control and storm damage reduction measures, including the right to:

(d) “move, store and remove equipment and supplies” [store? for how long?]

(e) “erect and remove temporary structures” [how temporary?]

(f) “perform any other work necessary and incident to the construction, periodic renourishment and maintenance of the Project” [any other work?]

(j) “trim, cut, fell, and remove from said land all trees, underbrush, debris, obstructions, and any other vegetation, structures and obstacles within the boundaries of the Easement Area.” [why?]

Many oceanfront property owners rent their properties. What exactly are they potentially subjecting their renters to if they give the Town a permanent ambulatory easement and a right-of-way in front of their vacation rental homes? Those who live on the oceanfront have to ask the same about what they potentially may be subjected to without legal recourse.

At the July Council meeting, Mr. Gallop observed that “There’s a chance that you don’t need easements to do beach nourishment” because this area is “subject to public trust and usage rights.” This may be so, but there is no definitive N.C. high-court ruling to this effect.

Mr. Gallop also said then that an easement obtained by condemnation—either quick-take or otherwise—“probably would be even more limited than what you would ask for voluntarily.”

Easements obtained by quick-take eminent domain are “very, very narrowed easements,” said the Town Attorney, and “voluntary easements are more broad.”

It seems both reasonable and obvious to ask, as we did preemptively in a 7/27/20 blog: Why would an oceanfront property owner who is opposed to:

  1. beach nourishment; and/or
  2. to giving the Town perpetual, irrevocable, nonexclusive, and assignable easements so that the Town, “its representatives, agents, employees, consultants, surveyors, contractors, permittees, assignees and invitees” can access his/her property at will to “survey, inspect,. . . protect . . . rehabilitate, and replace a public Ocean Beach, a dune system, and other “erosion control and storm damage reduction measures,”
  3. voluntarily grant these legal rights if a court will order narrower easements and award “just compensation”?

There are a lot of verbs being done by a lot of nouns in this draft document. As the co-owner of oceanfront property, I am not thrilled and will be eager to hear from elected officials if they have anything to say about it.

Call me grossly naïve, unrealistic, and too trusting, but couldn’t the Town have just asked for my permission to access the area on my property between the mean high-water mark and the dunes during the beach nourishment construction period without permanently subordinating my property interests?

I wonder how many of the owners of the 160 parcels—none of which is commercial— would have said no.

The Zoom Meeting ID for the Town Council’s meeting is 932 9270 1434; the passcode is 242462. You also may listen to the meeting on the telephone by dialing (646) 558-8656, and then entering the meeting ID and passcode, followed by the # key.

PLEASE NOTE: The Beacon will update the local COVID-19 scene, which continues to wax, not wane, tomorrow. Already today, the Dare County Dept. of Health and Human Services has reported six new COVID-19 cases, including a Dare County woman who is age 65 or older. Four of the six cases are nonresidents.

In her update Wednesday, Dr. Mandy Cohen, Secretary of the N.C. Dept. of Health and Human Services, singled out northeastern North Carolina as an area in the state where the number of COVID-19 cases is increasing.

Ann G. Sjoerdsma, 10/2/20  

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