5/16/21: BEACH NOURISHMENT: IS IT AN ‘IMPROVEMENT’ TO PRIVATE PROPERTY? PLUS HOW THE PUBLIC TRUST DOCTRINE CONFOUNDS, AND A REVIVED ‘SAND TAX’ OFFERS A RECURRING SOURCE OF FUNDS. 

Councilman Matt Neal’s assertion at the May 4 Town Council meeting that beach nourishment is “a public infrastructure investment on private property,” as well as an “improvement” to private property, drew an outcry of dissent from oceanfront property owners assembled to oppose the two municipal service districts (MSDs) proposed by the Town for use in funding its 2022 nourishment project. 

The two MSDs, whose boundaries were established solely by proximity to the oceanfront, were approved unanimously by the Town Council in two mandatory votes, the second of which took place on May 4.

(See the Town’s beach nourishment project report at https://www.southernshores-nc.gov/wp-content/uploads/2021/02/MSD-Report_mailed.pdf.)

Mr. Neal, who has taken an active role since January 2020 in defining the boundaries for the Town’s MSDs and in advocating for their establishment, said he did not think that paying for the 2022 beach nourishment project by levying an “equal, across-the-board tax” on all Southern Shores property owners would be fair.

Some property owners in the two MSDs, as well as landowners outside of the districts, have suggested that all Southern Shores property owners should pay equally for the beach project, just as they did for the multi-million-dollar canal-dredging project. The beach, after all, benefits all property owners, they say, regardless of where they live, because it is the backbone of the town’s economy. Most people also use and enjoy it.

He may be “tarred and feathered” for his views, the Councilman said, but “I can’t get past the improvement that’s occurring on private property.”

When oceanfront property owners called out that they do not exclusively own the dry-sand area of the beach east of the vegetation line—which may or not be built up by the 2022 dredging project—Mr. Neal suggested that they read their deeds.

We can assure Mr. Neal that reading deeds will not help resolve the legal murkiness of who owns the dry-sand beaches in Southern Shores or anywhere else along the North Carolina coast—especially after beach nourishment is done.

We also question Mr. Neal’s assertion that the beach nourishment project is going forward because “a majority of oceanfront owners are asking us for” it.

The truth is the Town did not directly solicit opinions from property owners until its public hearing in June 2020—inconveniently scheduled in the middle of the pandemic—which was held after the Town Council had already identified tentative MSDs and had proposed tax-rate increases per MSD.

The 2022 beach nourishment project is NOT being done because oceanfront property owners requested it. It is being done because Mayor Tom Bennett was determined to make it happen, despite the Town’s coastal engineering consultant advising him that the Southern Shores dunes are stable, and there is “no rush” to replenish them.

PUBLIC ACCESS AND USE RIGHTS

Under the confusing N.C. common-law doctrine of public trust, the public has a legal right to use the dry-sand beaches of North Carolina for recreational purposes, even though they are “owned” by private landowners.

Oceanfront property owners hold legal title to the beach up to the mean high-water mark, but they do not have the right, as the N.C. Court of Appeals has repeatedly confirmed, to exclude the public from this area.

(The State of North Carolina owns the “wet-sand beaches,” from the mean high-water mark eastward.)

If a stranger can use private oceanfront property without the consent of the landowner and without being liable for trespass, then that property ownership is qualified, regardless of who holds the legal title.

Hence, the outcry from the Town Council’s audience.

More problematic for us, but never addressed by the Southern Shores Town Council or the Town Attorney, is a North Carolina statute that declares that “title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed [beach nourishment] projects . . . vests in the State.”

N.C. General Statute sec. 146-6(f) unequivocally states that publicly financed replenished beaches are public beaches. Any placement of sand on the Southern Shores coastline above the mean high water mark would seem to result in a re-titling of the property from private to public.

But what public ownership interests are we talking about here? Just rights of access and use and enjoyment, or is there more to the ownership than that? The statute says title to the land vests in the State of North Carolina. But is there an actual taking of property?

It also states that “all such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches . . . .”

The Town of Southern Shores should clarify for oceanfront property owners—many of whom feel blindsided by the decision to use MSDs—what their ownership status will be after any deposition of sand on the dry-sand beach. It also should explain what the project construction involves.

Mr. Ogburn’s report says that 591,000 cubic yards of sand will be “used to construct a variable width berm at +6.0 ft. NAVD88, [and an] additional 286,000 cy is proposed to account for diffusion losses and advanced fill.”

We understand that imported sand will be deposited in the wet-sand area of the beach, which the State owns, in order to block the waves so that they break much farther out, and the beach is, thus, “widened.” But what does the construction of a “variable width berm” do for the dry-sand area that makes it an improvement for oceanfront property owners?

A berm is not a dune. So what can oceanfront property owners expect for their increased tax dollars?

It is more accurate to say that the change made by beach nourishment to the “public infrastructure” will be enjoyed, or not, by anyone who uses the beach, regardless of their property ownership.

Speaking as an oceanfront property owner who has a 50-year perspective of the Southern Shores beaches, I see the 2022 project as both unnecessary (in most areas of the coastline) and destructive.

Mr. Neal said he wanted to hear first from oceanfront property owners regarding: “Should we do the project?” My answer is emphatically no.

We have a beautiful natural beach at the oceanfront properties that my family and I co-own (see above photo) that will be transformed into an unnatural beach created by sand that does not belong in Southern Shores and will have to be replenished periodically—at exorbitant expense, and from our pockets—in order to maintain the unnatural width.

Bonnie Anderson of Yellow Fin Lane, told the Town Council that her family cannot afford to pay the tax increase that is projected for MSD-1 property owners, and asked its five members—none of whom owns property in the MSDs—to think about “the little folk.” We also are not high rollers.

Further, the last time we saw the text of the easement that the Town is asking oceanfront property owners to grant voluntarily, it was written unnecessarily to last into perpetuity, and was so vague as to be legally void. 

I consider this project to be the destruction of, or at least an interference with, the natural coastal environment. If ocean waves were lapping up at property owners’ back doors, as they are in Avon, that would be a different proposition. But they are not.    

Over the past 50 years, Southern Shores’ natural coastal shoreline has held up well, eroding maybe six inches in a given year at certain locations, but also accreting six inches or so in a given year at certain locations. No question, some of the shoreline has been lost. But there are no erosion hot spots; and no buildings are imminently threatened.

I may sound like a broken record, but when a Council member whose reasoning and judgment I respect, tells me that I’m getting a compulsory “improvement” in my property even though my property does not need improvement and I did not request it, and I must pay a premium for that unwanted “improvement,” I am a broken record.

DISCRETIONARY DECISION-MAKING, AMPLE CHOICE

A majority of the Town Council who approved the two MSDs on May 4 said they had no choice.

“The only way to do [beach nourishment] that’s practical,” said Mayor Pro Tem Elizabeth Morey, “is [with] the special obligation bond.” And that meant approving the MSDs. What else could she do?

The Town Councils of the past three years have had ample choice regarding the need for beach nourishment, and the financing, scope, and timing of a project: They did not explore these choices because Mayor Bennett, and his majority, had no interest in exploring them.

Every step the Town Council has taken has been one of discretion. Project manager Ken Willson of APTIM/Coastal Protection Engineering of North Carolina (CPE-NC) made a point in public meetings of telling the Council that he was not recommending beach nourishment; he was just giving the Council “options” to consider.

Town Manager Cliff Ogburn is wrong when he describes the 2022 beach-fill project in his project report as having been “recommended” by CPE-NC. Mr. Willson was very careful in his meetings with the Town to characterize the Council’s decision-making as both discretionary and subjective.

He never recommended a project; he simply offered options. The options he offered were based on computer calculations of theoretical storm damage that would occur after a theoretical hurricane the likes of which Southern Shores has not experienced since the 1940s. Isabel, a 2003 hurricane, had fizzled out by the time it reached the Southern Shores shoreline.

Except for maintenance in the southern section of Southern Shores, the 2022 project is strictly proactive, not rehabilitative.  

When it finally decided in June 2020 to do a 2022 project, the Council only voted to “pursue” beach nourishment. It never singled out a specific option offered by Mr. Willson’s firm. It never defined the project for the public.

From February 2019 forward, the Council focused exclusively on special-obligation bond/MSD funding, and it hired DEC Associates to provide tax-rate numbers according to potential MSDs before it even voted to approve beach nourishment!

We repeatedly wrote that the financing cart improperly preceded the horse of public and Council endorsement of a beach nourishment project.

As recently as its May 4 meeting, the Town Council could have changed the boundaries of the MSDs so that properties in the Chicahauk and Southern Shores dunes, where many vacationers rent, and commercial properties, which have contributed much of the beach-nourishment tax revenue in other Dare County beach towns, would be included in an MSD.

There was still time to start over with giving the requisite notice to property owners in the newly revised MSDs, with holding the required public hearing, and with taking two votes to approve an ordinance establishing the MSDs. Special Council meetings could have been scheduled.

The decision not to include any of them—and to use Duck Road as an arbitrary dividing line—was a choice. A discriminatory one, but a choice, nonetheless.

The Town Council insisted on an arbitrarily small inclusion of properties in the MSDs, based solely on number-crunching. Members did this even though they knew how harsh the burden would be on oceanfront property owners.

So, please. Do not tell us that you did not have a choice. You made your choices, whether you recognized them as choices or not.   

SALES TAX INCREASE TO PAY FOR BEACH NOURISHMENT

Before I sail off into the sunset for a while, I would like to say a word about the 2005 “sand tax,” which, if it had not been repealed by Dare County voters in 2006, would have paid for all of the beach nourishment projects undertaken in its eight-year cycle and created a surplus of funds.

In 2005, after receiving approval from the N.C. General Assembly, the Dare County Board of Commissioners imposed a 1 percent increase in the general sales tax to boost the balance in the County’s beach nourishment fund, which was known then as the Shoreline Management Fund.

At the time, the occupancy tax was 5 percent, not 6 percent, and 20 percent of that tax also went into the shoreline fund.

Fifteen years ago, only Nags Head was contemplating beach nourishment, and Dare County locals who lived elsewhere were resentful that they were paying a sales-tax booster to fund Nags Head’s costly first project and deriving no benefit. A local group known as the Beach Huggers secured enough signatures on petitions to force a referendum in 2006 to repeal the so-called sand tax.

In February 2006, voters defeated the tax by an overwhelming margin.

This was an extremely short-sighted measure taken by people who could not foresee the future. I include myself among them. In 2022 nearly $100 million will be spent on beach nourishment in Dare County.

According to a 2014 analysis done by The Outer Banks Voice with Dare County Finance Director David Clawson’s input, if the 1 percent sales tax increase had remained in effect for its full eight-year cycle, it would have generated $95.05 million, and the Shoreline Management Fund would have had a surplus of $47.6 million after paying cash for Nags Head’s $36 million project and all other proposed projects, including those on Hatteras Island.

The sand tax, which could have been renewed after its initial eight-year cycle, could have paid for all of Dare County’s subsequent beach nourishment projects. It is worth reconsidering.

We recently asked Dare County Manager Bobby Outten about requesting another sales-tax increase, and he discouraged the idea, saying he thought Dare County voters would simply defeat it in a referendum again. We would like to have the opportunity to try.

Ann G. Sjoerdsma, 5/16/21