4/9/21: N.C. COURT OF APPEALS OVERTURNS RULING IN FAVOR OF FACEBOOK-SAVVY DUCK SURFER IN BEACH ACCESS CASE, FINDS NO PUBLIC EASEMENT: The Beacon Provides Opinion.

Bob and Tanya Hovey pose for a Facebook photo in 2019 in front of the disputed easement in the Duck subdivision of Sand Dollar Shores.

The N.C. Court of Appeals overturned on Tuesday a 2019 ruling by a Dare County Superior Court judge that Duck business owner and surfer Bob Hovey could use a beach access at Sea Breeze Drive in Duck because it is public.

In its decision, the three-judge Court of Appeals panel* that heard the case, known as Hovey v. Sand Dollar Shores Homeowner’s Assn. and the Town of Duck, ruled that not only did Mr. Hovey fail to prove, as a matter of law, that the beach access he had sought to use was public, but there are no public beach accesses in Duck, only private ones.

The Court remanded the case to the Dare County Superior Court with an order that summary judgment be entered for the HOA and the town, which did not actively participate in the appeal. 

See Hovey v. Sand Dollar Shores Homeowners’ Assn. and the Town of Duck at https://appellate.nccourts.org/opinions/?c=2&pdf=39934

Bob Hovey, who owns Duck Village Outfitters, was arrested in May 2019 for trespassing at the Sea Breeze Drive access, which he argued in both the media and in court was a dedicated public easement.

Mr. Hovey created a social-media frenzy when he posted videotapes on Facebook of confrontations he had with angry homeowners in the Sand Dollar Shores subdivision of Duck and with police, who ultimately arrested him.

He wrote on Facebook then that he believed he was “the first person in the history of Duck to get arrested for going to the beach.”

Encouraged by public support and financial donations, Mr. Hovey filed a lawsuit, with his wife, Tanya, against the HOA and the town, contending that the language in the 1981 plat map for the Sand Dollar Shores subdivision intended to dedicate a public beach access/easement at Sea Breeze Drive.

When Judge L. Lamont Wiggins of Dare County Superior Court ruled in February 2020 in favor of the Hoveys on summary judgment, the misdemeanor trespassing charges against Mr. Hovey were dropped. 

According to the Court of Appeals’ opinion, which was authored by Judge Lucy Inman, the plat map included a “certificate of dedication” in which developer Sand Dollar Shores dedicated “all roads, alleys, walks, parts, and other sites to public or private use as noted.”

The certification also stated that “the streets and roads in this subdivision are dedicated to public use.” It did not specifically mention the eight-foot-wide pedestrian beach easement.

“Nothing on the face of the plat maps,” Judge Inman wrote, “notes the Easement as for either public or private use.”

Dare County accepted the developer’s plat map for recordation, as well as the developer’s dedication certification.

Two days after this acceptance, according to the Court’s opinion, Sand Dollar Shores recorded restrictive covenants for the new subdivision, among which was a covenant stating that the beach easement was for the sole use of homeowners in Sand Dollar Shores and their guests and that use by anyone else was prohibited and could result in a prosecution for trespassing.

After the Sand Dollar Shores Homeowner’s Assn. was established nine years later, the developer transferred ownership of the beach access to it. The HOA enacted its own restrictive covenants in 2015, making it clear that the easement was for the use of its members and their guests only.

The appellate panel, which consisted of Judge Inman and concurring Judges John M. Tyson and Tobias Hampson, had no difficulty ruling in favor of the HOA and the town as a matter of law.

The Court found that the language used by the developer in the plat map did not establish a “clear” and “unambiguous intention” to dedicate the easement to public use and distinguished all other cases argued by the Hoveys as inapplicable.

Gregory E. Wills, of The Wills Group in Grandy, represented the Hoveys on appeal.

Attorneys in the Raleigh and Greensboro offices of the Washington, D.C.-based law firm, Fox Rothschild LLP, represented the homeowners’ association. The Town of Duck did not file a brief.

Under N.C. appellate court rules, the Hoveys do not have a right of appeal to the N.C. Supreme Court, and it is highly unlikely that the State’s highest court would hear the case on discretionary review.

ACCESS TO PUBLIC-TRUST BEACHES

Local media have picked up on the Court of Appeals’ last paragraph in the opinion in which Judge Inman wrote that the court, in upholding “private property rights under the law,” was aware that Duck lacks public access to its beaches. She went on to say that:

“Plaintiffs are not barred from the beach. They may, as suggested by counsel, negotiate for access with Defendant [i.e., the HOA] or, failing that, drive to nearby municipalities or any unincorporated areas in the county to the north and south that maintain public beach accesses.”

This language may seem like “let them eat cake” language to many Outer Bankers, but the appellate judge was compelled to this conclusion by the law.

Regardless, it is ludicrous that the Hoveys, who own a house on N.C. Hwy. 12 across from Sand Dollar Shores, would have to travel to Kitty Hawk or Kill Devil Hills to access the beach.

The Beacon often hears from readers about the lack of public access in Southern Shores to the beaches, which are owned in trust for the public by the State of North Carolina. Anyone may use and enjoy the dry-sand beach areas, if they can access them.

The beach accesses in Southern Shores are owned and maintained by the Southern Shores Civic Assn., which allows the public to use them freely—but, as readers like to point out, as long as public parking is not provided, that use is more theoretical than real.

The North Carolina General Assembly has acknowledged as much and taken some initiative through the Coastal Area Management Act to incentivize the creation of public beach accesses.

In N.C. General Statutes sec. 113A-134.1(b), the N.C. legislature observed decades ago already that “Public access to beaches and coastal waters in North Carolina is . . . becoming severely limited in some areas. Also, the lack of public parking is increasingly making the use of existing public access difficult or impractical in some areas. The public interest would best be served by providing increased access to beaches and coastal waters and by making available additional public parking facilities. There is therefore, a pressing need in North Carolina to establish a comprehensive program for the identification, acquisition, improvement, and maintenance of public accessways to the beaches and coastal waters.”

We appreciate both private property rights and public access/use and believe it is unfortunate that the parties to this lawsuit could not work out a compromise. Their money—and that of the public—would have been better spent in community mediation than in litigation.

(*The N.C. Court of Appeals, often referred to as the intermediate appellate court because the N.C. Supreme Court is the highest appellate court, is made up of 15 judges who hear appeals in panels of three.)

Ann G. Sjoerdsma, 4/9/21

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