GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	2 

HOUSE BILL 1547
Committee Substitute Favorable 6/18/92

Short Title:  Public Use of the Beach.	(Public)
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Sponsors:
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Referred to:  
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June 3, 1992

A BILL TO BE ENTITLED
AN ACT TO CODIFY THE COMMON-LAW RIGHTS IN NORTH CAROLINA TO PUBLIC USE OF OCEAN AND ESTUARINE BEACHES AND TO AUTHORIZE LEGAL ACTIONS TO PROTECT THOSE RIGHTS.
The General Assembly of North Carolina enacts:
Section 1.  Part 6 of Article 7 of Chapter 113A of the General Statutes reads as rewritten:
"Part 6.  Open Beaches and Public Access Protection Program.
"§ 113A-134.1. Legislative findings.
(a)	The General Assembly finds that the ocean and estuarine beaches are among the most valuable resources of the State.  The public has traditionally fully enjoyed the State's ocean and estuarine beaches and public access to and use of the beaches. The beaches provide a recreational resource of great importance to North Carolina and its citizens and this makes a significant contribution to the economic well-being of the State. The General Assembly finds that the ocean and estuarine beaches are public trust resources of statewide significance and have been customarily freely used and enjoyed by people throughout the State as a part of their common heritage protected under Section 5 of Article XIV of the Constitution of North Carolina.
(b)	The General Assembly finds that there are privately owned undeveloped lots or tracts of land in close proximity to the Atlantic Ocean, its inlets, or other estuarine waters that have been or will be adversely affected by hazards of coastal waters such as erosion, flooding, and storm damage.  Sand dunes on many of these lots provide valuable protection for public and private property and are an integral part of the beach sand supply system.  Placement of substantial permanent structures on these lots will increase the risk of injury or death to persons and damage to property, increase various costs to the public, and may lead to encroachment of structures onto the beach itself.  When erosion causes oceanfront development to encroach on public trust areas of the ocean beaches, encroachments that interfere with reasonable use and enjoyment of the ocean beaches by the public should be removed or altered to afford reasonable public use.
(c)	The General Assembly finds that public trust rights to freely use and enjoy ocean and inlet beaches in the area between the first line of stable natural vegetation and the water arise under the Constitution and as a matter of the common law of the State.  The General Assembly further finds that public trust rights to freely use and enjoy estuarine beaches that are subject to lunar tides between the ordinary mean high waterline as indicated by vegetation and debris and the water arise under the Constitution and as a matter of the common law of the State.  The General Assembly finds that the public trust areas of the ocean, inlet, and estuarine beaches are also subject to the exercise of private property rights commonly known as littoral or riparian rights.  The Coastal Area Management Act of 1974, as amended, recognizes public and private rights in the beaches and establishes a means for balancing these rights through the issuance of permits for development in the public trust areas of the beaches.
(d)	The General Assembly finds that public access to ocean and estuarine beaches in North Carolina is becoming severely limited in some areas.  Also, 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 ocean and estuarine beaches, public parking facilities, or other related public uses and by protecting the public against interference with the customary free use and enjoyment of the ocean and estuarine beaches.
(e)	The General Assembly finds that publicly owned bridges, ferry landings, boat ramps, piers, ports, parks, historic sites, and accessways make a valuable contribution to the public use and enjoyment of ocean and estuarine beaches and waters.  Public improvements previously made to enhance legitimate public purposes for transportation, navigation, access to navigable waters, commerce at seaports operated by the North Carolina State Ports Authority, protection of State parks and State historic sites, fishing, hunting, and recreation are consistent with the public trust.  Construction and maintenance of additional public facilities and improvements of the types listed in this section that are consistent with the planning and regulatory requirements of this Article are also consistent with the public trust.  The Coastal Area Management Act of 1974, as amended, establishes a means for balancing the public benefits of facilities and improvements of the type listed in this section and the public trust rights to use and enjoy the beaches through the issuance of permits for development in the public trust areas of the beaches.
(f)	The General Assembly therefore finds that there is a pressing need in North Carolina to establish a comprehensive program for the identification, acquisition, improvement, and maintenance of public accessways to the ocean and estuarine beaches and for the protection of these public trust resources from unlawful encroachments, usurpation, or interference with the customary free use and enjoyment of the ocean and estuarine beaches.
"§ 113A-134.2. Creation of program; administration; purpose; definitions.
(a)	There is created the Open Beaches and Public Access Protection Program, to be administered by the Commission and the Department, for the purpose of acquiring, improving, and maintaining property along the Atlantic Ocean and estuarine waters and for the purpose of protecting public trust rights that apply to the ocean and estuarine beaches as public trust resources.
	(b) " As used in this Part:
(1)	'Estuarine water' has the same meaning as in G.S. 113A-113(b)(2).
(2)	'Public trust resources' has the same meaning as in G.S. 113-131(e).
(3)	'Public trust rights' has the same meaning as in G.S. 1-45.1.
"§ 113A-134.3. Standards for beach access program.
(a)	The Commission, with the support of the Department, shall establish and carry out a program to assure the acquisition, improvement, and maintenance of a system of public access to ocean and estuarine water beaches.  This beach access program shall include standards to be adopted by the Commission for the acquisition of property and the use and maintenance of said property.  The standards shall be written to assure that land acquisition funds shall only be used to purchase interests in property that will be of benefit to the general public.  Priority shall be given to acquisition of lands which, due to adverse effects of coastal and estuarine water natural hazards, such as past and potential erosion, flooding, and storm damage, are unsuitable for the placement of permanent structures, including lands for which a permit for improvements has been denied under rules adopted pursuant to State law.  The program shall be designed to provide and maintain reasonable public access and necessary parking, within the limitations of the resources available, to all areas of the North Carolina coast and estuarine waters where access is compatible with the natural resources involved and where reasonable access is not available.
(b)	To the maximum extent possible, this program shall be coordinated with State and local coastal and estuarine water management and recreational programs and carried out in cooperation with local governments.  Prior to the purchase of any interests in property, the Secretary or his designee shall make a written finding of the public purpose to be served by the acquisition.  Once property is purchased or transferred to the Department by another State agency, the Department may allow property, without charge, to be controlled and operated by the county or municipality in which the property is located, subject to an agreement requiring that the local government use and maintain the property for its intended public purpose.  These funds may be used to meet matching requirements for federal or other funds.
(c)	The Department shall make every effort to obtain funds from sources other than the general fund for these purposes.  Funds may be used to acquire or develop land for pedestrian access including parking or to make grants to local governments to accomplish the purposes of this Part.  All acquisitions or dispositions of property made pursuant to this Part shall be in accordance with the provisions of Chapter 146 of the General Statutes.  All grants to local governments pursuant to this Part for land acquisitions shall be made on the condition that the local government agrees to transfer title to any real property acquired with the grant funds to the State if the local government uses the property for a purpose other than beach access.
"§ 113A-134.4.  Injunctive relief and damages.
(a)	The Secretary or the Attorney General may bring a civil action against any person, State agency, or other legal entity who has unlawfully encroached upon, usurped, or otherwise violated or interfered with the public trust rights of the people of the State to freely use and enjoy the ocean and estuarine beaches or legal rights of access to such public trust resources.  The Secretary or the Attorney General may seek an injunction to restrain the violation or interference, an injunction to prevent future violations or interference, a permanent or mandatory preliminary injunction to restore the resources to an undisturbed condition, and damages.  The civil action shall be brought in the superior court of the county in which the violation or interference occurred.  If the court finds that an unlawful violation or interference with public trust rights has occurred, the court shall, at a minimum, restrain the violation or interference, order restoration of the resources, and award damages for the violation or interference with the public trust resources or access to the ocean and estuarine beaches.  A civil action brought under this section does not relieve any party to the action from any civil or criminal penalty otherwise prescribed for the violation.
(b)	To order alteration or removal of a structure, a court must make written findings that:
(1)	The structure causes or will cause a significant interference with public trust rights to use and enjoy the beaches;
(2)	The public will be deprived of reasonable use and enjoyment of the beach unless the structure is altered or removed; and
(3)	The benefit to the public of altering or removing the structure outweighs the harm to the owner of the structure."
Sec. 2.  This act becomes effective 1 October 1992.