GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 854

Short Title:  Liability for Erosion Damage.	(Public)

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Sponsors: Senator Cooper.

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Referred to:  Judiciary I/Constitution

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April 26, 1995

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT AN OWNER OF AN EROSION OR STORM-DAMAGED STRUCTURE IS LIABLE FOR CERTAIN DAMAGES RESULTING FROM THE HAZARDS POSED BY THOSE STRUCTURES.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 113A of the General Statutes is amended by adding a new Article to read:
"ARTICLE 7B.
"Liability for Damage From Erosion and Storm-Damaged Structures.
"§ 113A-134.11.  Policy.
The presence of erosion or storm-damaged structures on or in close proximity to the public beaches and waters of the State presents an increased threat of accident, injury, and other hazards to the public health, impedes passage on public trust beaches and waters, and is prejudicial to the public health, safety, and welfare.  A clear, efficient, and equitable program is needed to identify those structures in imminent danger, assign responsibility for the resolution and abatement of the hazards posed, and assure financial responsibility for cleanup costs and damages that are incurred.
The principal responsibility for preventing threatened and damaged structures along the public beaches and waters from endangering the public rests with the owner of those structures.  It is the policy of the State of North Carolina that the first priority use for insurance coverage payable as the result of the loss of or damage to such structures as the result of flood, storm, or erosion hazard shall be the satisfaction of the reasonable costs of cleanup and damages caused by any debris from the structure.
"§ 113A-134.12.  Definitions.
(a)	Owner. – The holder of the title in fee simple. The term shall include any part owner, joint owner, tenant in common, joint tenant, or tenant by the entireties of the whole or a part of the property.
(b)	Public Beach. – The term includes the foreshore and the dry sand beach seaward of the first line of stable natural vegetation or erosion escarpment.
"§ 113A-134.13.  Notice of imminent or existing threat to public interests.
(a)	A city or county with jurisdiction along public beaches and waters may identify those structures along its shoreline that have suffered or are in imminent danger of suffering erosion or storm damage.  Upon such a finding, the city or county shall immediately provide notice by registered or certified mail of the identification to the owner of the property as identified in the county tax records.  If after due diligence the owner cannot be identified within a reasonable time by this method, the city or county shall publish the notice in a newspaper of general circulation in the area at least once and shall prominently post a copy of the notice on the property involved and such notice shall constitute adequate and proper notice to the owner.
(b)	The city or county may by ordinance also provide that upon mailing of this notice, a notice of lis pendens with a copy of this notice attached, may be filed in the office of the clerk of superior court for the county in which the property is located and shall be indexed and cross-indexed in accordance with the indexing procedures of G.S. 1-117.
(c)	The owner receiving the notice shall, within a reasonable time specified in the notice, file with the city or county providing the notice a remedial plan to resolve and abate the problem.  The plan filed by the owner shall include the names and addresses of all parties having an ownership interest in the property involved, a list of all property and flood insurance held on the property involved, and a list of all liens outstanding for the property.  The plan shall also indicate the remedial action that will be taken, including the proposed timetable and estimated cost of the remedial action.  The city or county may by ordinance require that a bond or other appropriate financial guarantee be submitted as a part of the remedial plan.  If the owner does not reside within the county in which the property is located, the city or county may by ordinance require each owner of property receiving a notice of imminent or existing threat to authorize a resident of the county in which the property is located as the owner's agent for the purpose of accepting service of process in an action regarding enforcement of this Article.
(d)	Within a reasonable time after receipt of a plan from the owner, the city or county shall review the plan.  If the remedial plan adequately addresses the hazard posed by the structure involved, the city or county shall approve the plan and so notify the owner and any other parties as may be appropriate.  If the city or county finds that the remedial plan is inadequate to prevent or abate harm to public interests, it shall deny the plan and promptly notify the owner of the specific deficiencies in the proposed plan.
(e)	The notice of imminent or existing threat provided to owners shall include notice of a reasonable local administrative appeals procedure by which the owner can appeal whether the hazard in fact exists.  The notice of plan approval or denial shall include notice of a reasonable local administrative appeals procedure by which the owner or another affected party can appeal a decision to approve or deny a remedial plan.
"§ 113A-134.14.  Liability.
(a)	The owner of a structure that collapses as a result of erosion or storm damage is liable for the cost of cleaning up the site for any damage caused to other public or private property by debris from the collapsed structure.  The owner of a structure that interferes with public use and enjoyment of public trust areas is liable for the cost of removing the impediment.
(b)	If a remedial plan has  either not been submitted or submitted and not approved by the city or county within the reasonable time periods specified in G.S. 113A-134.12, the city or county may issue an order for the demolition or removal of the structure, cleanup of the debris involved, and any other remedial action as is necessary to protect the public interest.  If the order is not complied with within the time specified, the city or county may have the structure demolished or removed, all necessary cleanup accomplished, and the expenses thereof shall be charged to the owner.  If not paid, the expenses become a lien upon the land or premises involved and shall be collected as unpaid taxes.  Notice of this lien shall be provided to all insurers and creditors identified in the remedial plan.
(c)	If the owner fails to implement an approved remedial plan in a timely manner, that owner shall be strictly liable for any damages to public or private property that result from the failure to take remedial action.  If cleanup costs and damages are caused by multiple structures, the city or county shall make a reasonable allocation of the costs among all affected owners of structures contributing to those costs.
"§ 113A-134.15.  Other authority.
(a)	The provisions of this Article are in addition to and supplement any other statute or law by which the State or an affected local government can protect public rights in public trust areas, abate nuisances, and require the remediation of unsafe and hazardous buildings and situations.
(b)	A city or county may request any assistance as is appropriate from, and assistance may be provided by the Department of Environment, Health, and Natural Resources and the Department of Justice."
Sec. 2.  This act is effective upon ratification.