Attorney Clark Wright has finished his review of the draft easement. He also has reviewed several other NC town beach nourishment easements, and conducted legal research into relevant NC statutes, rules and published cases. Mr. Wright interviewed several other NC beach town attorneys who have worked on similar issues, as well as University of North Carolina Professor Emeritus Joe Kalo, who has taught and written numerous articles on North Carolina coastal law issues. Mr. Wright wants to emphasize the cooperative manner in which the Town Attorney has worked with him, and that the primary objective is to fully support implementing the Central Reach project, while also respecting private (and public) property rights.
Mr. Wright emphasizes that his interactions with the Town Attorney were not a negotiation process, but rather a constructive information sharing process. Similarly, Mr. Wright is not representing any particular landowner, but rather is providing general advice to the HBPOA, at its request. These distinctions are important legally – they mean both that the Town and its Attorney are acting as they best see fit in the interests of the Town, while Mr. Wright is providing general input to the Town, and then informing the HBPOA of the results of those discussions, along with his best general legal overview. Mr. Wright emphasizes that every property owner in the Town is free to seek their own legal advice.
In all events, Mr. Wright is pleased to report that the Town has revised the terms of the Central Reach Project easements. The fundamental purpose of the easement has not changed – namely, to satisfy the requirements of state and federal permits so that the Central Reach Project can go forward on schedule. Mr. Wright emphasizes that affected property owners should NOT print out and sign easements using any copies provided informally by the HBPOA or other unofficial sources – they should wait until they receive official communications from the Town.
The amended easement terms address many of the concerns raised by HBPOA property owners. The amended easement:
- Includes language that more clearly confirms retention of all littoral rights and other rights of access to, and use of, both the wet and dry sand portions of the ocean beach, as well as the Atlantic Ocean – both as such rights exist now, and making it clearer that such rights continue to exist, in perpetuity, after project work is completed.
- Includes language more clearly confirming the right of oceanfront property owners to construct and maintain beach access walkways allowing them to exercise their littoral and other beach access/use rights, complying of course with all related permitting requirements.
- Deletes entirely the original easement language authorizing Town officials to access any part of a property owner’s land other than the actual Easement Area.
- Better clarifies that the easement language limits the uses and activities granted to those specifically stated in the document for the Central Reach Project as permitted, including potential renewals and extensions, and deletes some prior broadly worded language re other (unnamed; unrelated) activities or projects.
- Includes a new sentence resolving any ambiguity in the Easement terms in favor of property owner’s retaining and exercising their littoral or other rights of ocean and beach access.
The signed and returned easements will not be recorded until the Central Reach Project is ready to go forward. There may come a point where the relevant federal or state agencies require the Town to record easements as a prerequisite for final funding or other approvals, and if such a request is made, the Town will of course then record. Mr. Wright also noted that, although some owners have raised concerns about the Town’s legal right to assign the easements, this right is limited and actually may be beneficial. The purpose of this provision is to deal with the potential that in the future another governmental agency or entity might assume responsibility for beach protection activities and step into the shoes of the Town. This could mean that the Town and homeowners would benefit from additional financial support for beach protection. The assignment provision would not, however, allow the Town to assign the easement to any private entity or for any purposes other than implementing and maintaining the Central Reach Project as permitted, renewed or amended.
Mr. Wright emphasizes that an easement document is not the place where every concern that has been raised can be directly addressed or resolved. He noted as an example that the Town of Emerald Isle is embroiled with litigation now before the NC Supreme Court that could end up changing – for all NC beach property owners – the definition and scope of littoral rights and the long standing, customary rights of the public to use and enjoy the dry sand beach. On this issue, Mr. Wright noted that while some property rights advocates contend that Emerald Isle has overreached in its beach management ordinances, he very much hopes that the NC Supreme Court will reaffirm the right of the general public to use and enjoy the dry and wet sand portions of the State’s ocean beaches, even in areas where such areas remain in private ownership. He summarized this very important issue by noting that the revised Holden Beach easement represent a strong statement in favor of both the private property (littoral) rights of beach front property landowners and the equally important right of the public to use and enjoy the dry sand beach.
With regard to concerns expressed over possible eminent domain proceedings, Mr. Wright noted that Holden Beach, like all local governments, possesses eminent domain authority for public purpose projects, such as the Central Reach Project. He noted that from his review of other local beach nourishment projects in NC, the number of actual, contested eminent domain proceedings is very small – especially when compared to the total number of involved property owners. He also noted that in any such proceeding, the affected owner retains important constitutional and statutory legal rights. He finally observed that the benefits of the revised easement likely would flow to any property owner that the Town might issue an eminent domain proceeding notice to in that should the Town “win” a court order, the result very likely would be implementation of the terms of the revised easement as to the involved property.
While every landowner should, of course feel free to contact and obtain their own independent legal advice, and while Mr. Wright emphasized that NC attorney ethical rules prevent him from giving individual legal advice to such a large group of landowners, he does believe that the terms of the revised easement are such that all affected owners should give serious consideration to quickly signing and returning it, once received from the Town Attorney. Mr. Wright concluded his recommendations by observing that time is of the essence in order to preserve the Town’s ability to move forward with the Central Reach Project.
Click here for the October Board of Commissioners’ Meeting agenda. Highlights include an update on the proposed Terminal Groin, the annual beach monitoring report, a self-assessment on Hurricane Matthew and parking issues.
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