June 6, 2014

Dear Prof. Kalo: novel theories cannot strip North Carolina's dry beaches of their private character

By J. David Breemer Senior Attorney

If you have ever walked along North Carolina’s ocean beaches or even seen photos, you will notice that there are many beach cottages on, or immediately adjacent to, the dry sand areas of the beach.

This is because the dry sand beach area is privately owned land in North Carolina, as it is in most coastal states in the United States.  For several decades, however, local North Carolina governments, such as the Town of Nags Head, and some pressure groups have sought to have all dry beach areas declared to be a public area, regardless of prior private use and ownership.

The intellectual spearhead of this charge is Professor Kalo of the North Carolina School of Law and North Carolina Coastal Resources Law, Planning and Policy Center.  Professor Kalo has always been careful to note that the issue of where the public beach ends and private property begins is (in his view) complicated and unsettled in North Carolina. Nevertheless, over the years, Kalo has steadily and publicly advanced the idea that, under state law, dry sand beaches — though privately owned — should be available for public recreation and use. See Kalo, The Changing Face of the Shoreline: Public and Private Rights to the Natural and Nourished Dry Sand Beaches of North Carolina, 78 N.C. L. Rev. 1869 (2000). Implicit in his position is that private owners are owed no compensation for having their dry sand property burdened with a public access easement.

It is important to understand the practical import of this idea.  The beaches are not weather-proof.   Beach homes sitting on grass in the second row of houses today could be on a dry sand area tomorrow when the next storm hits and wipes away the vegetation.  If Kalo and others have their way, these properties would instantly become public areas, even though they were always used privately and remain privately developed.  The “dry beaches are public beaches” push is thus a push for a perpetual private land-grab machine. Every time weather events denude the beach grass a little bit (or a lot farther) inland, presto!, the public would gain a new beach park on the newly formed, but private, dry sand area (without compensation).

Like the sands at Nags Head, Kalo’s legal arguments have shifted over time.  At one point, Kalo argued that the state’s “public trust doctrine” provides a legal basis for subjecting private dry beach areas to public access and use.  More recently, however, Kalo seems to favor the concept of “customary law.”  Joseph J. Kalo and Lisa Schiavinato, Customary Right of Use: Potential Impacts of Current Litigation to Public Use of North Carolina’s Beaches, 6 Sea Grant law and Policy Journal, 26 (2014).

Neither theory works.  Generally speaking, the public trust doctrine holds that states must hold and administer  submerged lands (lands covered by navigable public waters), in trust for certain public uses, like swimming, navigation, commerce and fishing.  The public trust area ends on the landward side where the state’s submerged lands terminate. In most coastal states, including North Carolina, the boundary of state submerged lands is the mean high water (MHW) mark, defined as the average of daily high tides over an 18.6 year period.

The area covered by the MHW mark is sometimes called the “wet beach.” Lands located inland of the MHW mark/”wet beach”– including dry sandy areas next to the dune or vegetation line–are not considered to be submerged lands; they are simply dry parcels like any other.  Thus, as noted above, in North Carolina, dry beach parcels above the MHW mark are private property. This private quality makes it impossible to use the public trust doctrine to impose public access on such lots. After all, that doctrine is based on  the state’s ownership of submerged lands; the state holds beach land it owns in trust for public use. Since it does not own dry beach parcels, it cannot hold them in trust for the public, and there is no basis in the public trust doctrine for concluding that the private owners hold their private dry land in trust for the public. Not surprisingly, no North Carolina state court has ever held that the public trust doctrine applies to privately owned dry sandy beach parcels.

Recently, Professor Kalo appears to have conceded that the public trust doctrine fails as a “hook” to re-make private dry beaches into a public area.  See Kalo and Schiavinato, Customary Right of Use, supra.  But he has not abandoned the fight; his new weapon of choice is the concept of customary law.  It is an equally inapt tool.

Customary law derives from English law.  The idea is that when a specific community has engaged in a specific and reasonable practice on a particular area of land for a very long time, the law will sometimes recognize a right to continue the practice even if it runs counter to normal rules.  Pointing to a public presence on the North Carolina shore for a long time, Kalo seems to think customary law concept may give the public a customary right to use the current dry beach areas, and any created in the future, even though they are held in private title.

There are so many problems with this idea it is hard to know where to start. For the moment, it is enough to say that customary rights do not apply to areas of land that have never before been subject to public use (such as privately developed beach lots suddenly denuded of vegetation) and it has never allowed the recognition of a right in the general public over an entire state.  All the state courts that have recently considered the idea have rejected it.  Indeed, the Texas Supreme Court poured cold sea water on the customary law theory in PLF’s 2012 Severance v. Patterson beach property rights decision.  Only one U.S. court  has accepted the idea– the Oregon Supreme Court — and it has been soundly criticized for that decision ever since.

Under traditional legal rules, when a storm strips away  grass from a private oceanfront parcel making the parcel into a nice, dry sandy beach area, nothing changes except that the owner now has control of a sandy front yard, instead of a vegetated one.

This does not mean it is impossible for the public to acquire access to and across private sandy lands.  They can always ask property owners for access. Most owners don’t mind granting reasonable access to the shore– if they retain the right to say “please go away” when necessary. What they do mind is being forced by the government to accept strangers on their doorstep at any and all times. Even if an owner holds back consent,  the public has lawful options to gain reasonable access under the concepts of prescriptive or dedicated easements.  But these doctrines demand that the public prove that it has consistently used the specific area it wants to access for a very long time against the owner’s wishes, or that the owner purposefully dedicated the area to the public.  This proof must be collected and presented on a parcel-by-parcel basis. Alternatively, the public can pay for the easement where it wants it.

And there is the rub: the lawful ways for the public to acquire access to private beach property are time-consuming, labor intensive and expensive. At the heart of Professor Kalo’s theories is the desire for a short cut, a magical way to transform all private dry beach land into public land without going through the trouble of going to court repeatedly to prove the public has preexisting rights or to pay the private owners for an easement.

But there is no free lunch in America when it comes to property rights.  Kalo deserves some credit for recognizing that courts may reject his position. But he understates the legal and policy problems arising from the public trust and customary law theories. Thank goodness those problems are real.  If the government can use arcane legal terms to redefine private beach lands as public lands simply because there is a high public demand for access to that area and it is expensive to buy, there is no safety for any land. Riverfront property, mountain ranches, coastal bluffs are all desirable and subject to demand for access. If such property is to remain secure, novel public trust and customary law property theories like those advanced by Professor Kalo must fail as a basis for undermining traditional private property rights on North Carolina’s coast and elsewhere.

And indeed, these theories are on trial in several PLF cases that challenge the Town of Nags Head’s attempt to classify Roc Sansotta’s and Matt Toloczko’s private, residentially-zoned and developed dry beach property as a public beach.  See here and here. The Town points to Kalo’s articles.  PLF and the property owners point to the Constitution and traditional state property rules, and the principles of justice, stability and fairness that underlie them.  We trust the latter will win out.

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