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

4/5/21: PROPOSED REWRITE OF TOWN NOISE ORDINANCE NEEDS A REWRITE. Plus Regulating Beekeepers in Neighborhoods.

A recent peaceful morning at the marina on Loblolly Drive, which is off of Holly Trail.

An illogically constructed and confusing rewrite of the Town’s noise ordinance is among the changes to the Southern Shores Code of Ordinances that the Town Council will consider at its April 13 regular meeting, according to the meeting packet posted on the Town website. 

We hope the Council will not waste much time on this proposed ordinance. It needs a substantial rewrite.

The Town Council will meet at 5:30 p.m. on Tuesday, April 13, in the Pitts Center. You may access the agenda here:

https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2021-04-13.pdf.

While the headliner on the Council’s agenda is its first vote on a Town ordinance that would establish two municipal service districts for purposes of taxing property owners and paying for the 2022 beach nourishment project, Town Code amendments offered by staff are also noteworthy, especially the noise ordinance.

(We will preview the Council’s scheduled actions on MSDs and beach nourishment later in the week. Three parties have filed requests to have their properties excluded from the MSDs: two private landowners and the Southern Shores Civic Assn. If the Council approves the MSDs, it will take its second vote at its May 4 regular meeting, according to Town Manager Cliff Ogburn.)

When the public was surveyed by CodeWright Planners for the Town Code revision, and we last met with principal Chad Meadows more than two years ago, there was interest in bolstering Town regulations about noise. Not many of us enjoy someone else’s loud music at late-night parties—or at gatherings at any other time of day—and Southern Shores definitely has its share of them.

Unfortunately, Mr. Meadows’s proposed replacement of Town Code sec. 22-3, titled “Noises prohibited,” increases the verbiage of the current ordinance five-fold without improving upon its clarity, notice, or substance and without protecting us from unreasonably loud or excessive noise generated by our fellow residents.

It is evidentiary support for the Town Council’s decision to reject as unacceptable most of the Durham-based planning consultant’s work product. 

On March 2, the Town Council tasked Town staff—in particular, Planning Director/Deputy Town Manager Wes Haskett—with trying to salvage any “valuable elements” that might exist in the Adoption Draft of the revised Town Code that CodeWright submitted for final review.  

If the proposed noise ordinance is indicative of the “elements” that may exist in the draft, few can be considered valuable. We challenge you to read CodeWright’s “replacement” noise ordinance and arrive at a different conclusion:  

See pages 69 to 78 in the meeting packet at https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2021-04-13.pdf.

In contrast, a proposed new ordinance about the consent that non-commercial beekeepers in town must obtain from their neighbors before they may keep an apiary, is tightly written and specific, spelling out how they must proceed. (Heretofore, there has been no beekeeping ordinance in Southern Shores. State and federal laws are applicable.)

The intent of the ordinance, which has been proposed because of “changes in state law,” according to Mr. Haskett, is to ensure that a Southern Shores resident’s beekeeping does not adversely affect “the use and enjoyment of neighborhood properties surrounding the property on which the bees are kept.” The new ordinance would be codified as sec. 4-28.

The beekeeper must obtain written consent—the details of which are spelled out in the proposed ordinance—from all adjoining landowners for a proposed apiary site and provide it to the Town Manager. Absent such consent, a beekeeper cannot operate. (See pp. 67-68 of the meeting packet.)

Another proposed change to the Town Code would delete an article in chapter 18 that created an auxiliary police force to consist of as many volunteer members as the Town Council “may, from time to time, deem necessary.”

According to Mr. Ogburn’s summary in the meeting packet, the abolition of the auxiliary police and changes to the noise ordinance “were initially requested by the Police Department.”

Unfortunately, a volunteer auxiliary police force has become an anachronism. Forty years ago it seemed like a good idea.

A CACOPHONY OF NOISE (Yes, That’s Redundant)

The poor construction of the proposed new noise ordinance is immediately apparent.

The so-called “prohibited acts” that constitute “prohibited noise,” for which the police can issue a violation citation, are buried beneath:

  • an excessive and unnecessary definition section;
  • a listing of exemptions to the prohibitions (exemptions should never come before the standards themselves); and
  • confusing and overly complicated language about the difference between “maximum sound levels” and “noise” and what constitutes “maximum permitted sound levels” in different zoning districts.

Consider these three over-the-top definitions:

[Please note: We admit to a pet peeve, left over from our newspaper editing days, about the misuse of “which” for “that,” hence the “sic” signifying improper grammar.]

1. “Noise: Any sound which [sic] annoys or disturbs humans or which [sic] causes or tends to cause an adverse psychological or physiological effect on humans.”  

Any sound that annoys or disturbs—whatever those verbs mean—“humans”? An “adverse psychological or physiological effect”—determined how? By medical judgment or testimony?—on “humans”? How many humans do you need?

Such a vague, overbroad definition has no place in law, on the municipal level or elsewhere. It is better to identify what constitutes unacceptable noise rather than to try to define noise.

2. “Noise disturbance: Any sound which [sic] endangers or injures the safety or health of humans or animals; a noise that disturbs a reasonable person with normal sensitivities; endangers or injures personal or real property; or is unreasonably loud, disturbing or excessive noise.”

Does this definition modify the “noise” definition, so that we now know that only sounds that endanger or injure the health or safety of humans or animals can “disturb”? Or is this a different kind of noise experience? There is no section in the ordinance titled “Noise Disturbances.”

As for animals, are we talking about farm animals here? My dog is traumatized by the sounds emitted by helicopters, backfiring pickup trucks, and a myriad of other loud traffic sounds. They are a hazard to his mental health. Can I call the police and report the offenders? 

And what’s this business about a reasonable person “with normal sensitivities”? The noise definition only dealt with humans, regardless of their reasonableness or sensitivities. Now we’re applying the well-known hypothetical reasonable person who appears in legal cases.

3. “Unreasonably loud, disturbing or excessive noise: Any sound which [sic] because of its volume, level, duration or character disturbs, discomforts, injures or endangers the health, peace or safety of a reasonable person with normal sensitivities. For purposes of this chapter, such a sound shall be deemed to be a noise disturbance.”

If you’re still with us, you must now be wondering what the difference is between a noise that is prohibited—which we’ll get to—and a “noise disturbance.” If there is a legal distinction, it was lost on us until we really dug into the ordinance, and it will be lost on anyone who attempts to read and make sense of this ordinance.

Laws should not obfuscate.

Is it necessary to have three different terms defining “noise”? Of course not. It is confusing.

Even more baffling, after belaboring the definition of noise, the proposed ordinance prohibits “mechanical, amplified or [another type of generated] sound from any source which [sic] registers more than 60 dB(A) [decibels],” between 7 a.m. and 10 p.m. in all residential districts. During the nighttime hours of 10:01 p.m. to 6:59 a.m., such sounds may not exceed 55 decibels in the residential districts.

We ask: Why bother figuring out what noise is, if decibel level and time of day ultimately determine prohibited sounds?

Of course, once decibel levels are introduced, you have to figure out how to measure them. The ordinance seeks to explain how noise can be measured for purposes of proving a violation, but it also creates loopholes that make a sound-emission decibel measurement superfluous.

If you don’t know the decibel level, according to the proposed ordinance, you can substitute “complaints of numerous persons, at least one of whom resides in a different location from the other complaining person or persons” for a decibel measurement on a “sound level meter,” because, after all, people know when sounds are “unreasonably loud, disturbing, or excessive noise.” (See definition.)

Alternatively, you can prove that the noise was of such a “nature that a reasonable person with normal sensitivities should have known that the noise was creating an unreasonably loud, disturbing or excessive noise.” (See definition.)

And round and round, we go.

SPECIFICALLY PROHIBITED NOISES

The prohibited noises enumerated by the ordinance start with this one:

“The playing of any television set, musical instrument, or other electronic sound amplification system in such a manner or with such volume as to annoy or disturb the quiet, comfort, or repose of a reasonable person with normal sensitivities as determined by the Town Manager (or a designee).”

Now it would seem that decibel level no longer determines what constitutes prohibited noise, Cliff Ogburn does!

The second noise prohibited by the proposed ordinance is:

“The keeping of an animal which [sic], by causing frequent or long continued noise, shall disturb the quiet, comfort, or repose of the immediate area to such an extent as to constitute a nuisance.”

We assign a sic here because an animal is a “who,” not a “which.”

To quote the late Dick Enberg: “Oh, my.”

What, we wonder, is the meaning of “frequent,” “long continued,” “immediate areas,” or “nuisance”?

There are definitions of nuisance elsewhere in the Town Code—nuisance being a legal term—but they currently do not apply to barking dogs.

This prohibition is actually a rewrite of the current Town Code noise prohibition about animals that reads:

Loud animal noises: The keeping of any animal which [sic], by causing frequent or long continued noise, shall disturb the comfort and repose of any person in the vicinity.”

No ordinance is going to solve the everyday problem of how long must a barking dog bark before you justifiably can call the police and report it–and the police can issue a citation. You just know how much time must pass before any “reasonable person” has had enough.

Among the 10 exemptions to the ordinance’s prohibitions, this is our personal favorite:

“The playing of a musical instrument between the hours of 3:00 p.m. and 7:00 p.m. Monday through Friday and 12:00 p.m. to 7:00 p.m. on Saturdays and Sundays provided said sound does not exceed 65 dB(A) at the property line of the property from which the sound emanates.”

So, even though the playing of a musical instrument “in such a manner or with such volume as to annoy or disturb the quiet, comfort, or repose of a reasonable person with normal sensitivities,” as determined by Mr. Ogburn, is prohibited, and sounds “from any source” that register more than 60 decibels are prohibited during the daytime in the residential districts, a person may still play an instrument during afternoons and evenings—provided the sounds he or she creates do not exceed 65 decibels at their property lines.

Another proposed exemption of interest is the following:

“Noise resulting from the loading and unloading, opening, closing or other handling of boxes, crates, containers, building materials, or similar objects between the hours of 7:00 a.m. and 10:00 p.m.”

OK. Certain workers have to work, and they make noise when they do.

Interestingly, this exemption serves to “balance” the following overwritten and poorly constructed noise prohibition:

“The loading, unloading, opening, closing, or other handling of boxes, crates, containers, building materials, garbage cans, dumpsters of similar objects between the hours of 10:00 p.m. to 7:00 a.m., the following day, in such a manner as to cause a noise disturbance across a residential real property boundary or within a noise sensitive zones is prohibited as set forth in the maximum decibel levels set for each zone at the times of day consistent with this chapter.”

For some reason, this prohibition does not parallel the others in sentence structure.

But, aha! Now we know what can constitute a “noise disturbance.” But why is this prohibition among “Prohibited Noises,” instead of in a separate section called “Noise Disturbances”? And do we really want to have differing terms for noise just to stop people from complaining about trash trucks?

Former Town Manager Peter Rascoe once told me that the most common single complaint he received from residents was about the noise caused by early morning garbage trucks.

To complain about this noise under the proposed ordinance, you would have to assert that Bay Disposal created a noise disturbance (see definition above) that crossed your property line or that you live in a “noise-sensitive zone” and that the sounds made by the garbage truck exceeded the maximum decibel levels (see above) for the zone in which you are located.

Noise-sensitive zones are actually buildings, according to the proposed ordinance. They include “rest homes, healthcare facilities, places of worship, educational institutions, and day care facilities.”

What a mess. And we haven’t even touched on CodeWright’s [and potentially others’] attempts to regulate “equipment noise” and motor-vehicle and motor-boat sounds.

Among the latter is a prohibition on motorists playing or operating “any sound system or sound producing instrument, device or apparatus when the speaker volume is elevated to such an extent that the sound is clearly audible more than 50 feet from the vehicle.”

Why would anyone bother with trying to snag the oblivious music boomers who drive through town? What a waste of law enforcement’s time.

And what is the harm really? So what if residents, including myself, gnash their teeth and tolerate some fleeting seconds of head-banging music? It is our neighbor’s hours-long head-banging music that really concerns us.    

As we see it, the only people who benefit from most of the prohibitions against “loud or disturbing” motor vehicle/boat noises are defense lawyers.    

As for equipment noise, we do not think the Town should prohibit people from performing “lawn care” after 8 p.m., which the ordinance does. In the summertime, daylight continues past 8 p.m., and people should be able to take advantage of it and mow their lawns.

We also see a significant contradiction between the sections titled “Prohibited Construction Activity” and “Prohibited Equipment Noise.” While the former continues the prohibition of construction (“the erection, . . . demolition, alteration, or repair of any building”) on Sunday, and from 8:01 p.m. to 6:59 a.m., on Monday through Saturday, the latter permits “equipment being used for construction” every day of the week, between 7 a.m. and 8 p.m. There is no definition of construction in the equipment noise section.

Unquestionably, the Town’s current noise ordinance can be improved upon with more specificity and with some thoughtful additions and deletions, but enforcement is always going to be an issue.

We lean toward criminalizing only those acts that create persistent (duration to be specified) “unreasonably loud noise” that violates residents’ right of use and quiet enjoyment of their properties. Property use and quiet enjoyment are components of the public’s health and general welfare.

We all have to expect and tolerate a certain amount of noise generated by other people, whether they live next to us or just drive past us.  

As it is written now, the current noise ordinance is far superior to what CodeWright has wrought simply because it can be easily read and understood, even if it is not terribly useful.  

Ann G. Sjoerdsma, 4/5/21