Monday, March 4, 2024

Carolina Beach’s Board of Adjustment deals blow to Freeman Beach LLC., affirms town’s action

In the latest turn of events at Freeman Park, the town's Board of Adjustment heard from property owners who installed rope fencing on the beach in February in an attempt to grow new grass thereby extending the dunes, and private property

The Town of Carolina Beach's Board of Adjustment upheld the decision of the town to remove fencing installed by property owners (Port City Daily photo/MICHAEL PRAATS)
The Town of Carolina Beach’s Board of Adjustment upheld the decision of the town to remove fencing installed by property owners (Port City Daily photo/MICHAEL PRAATS)

CAROLINA BEACH — After nearly three hours of deliberation, presentation, statements from property owners, lawyers, and Carolina Beach staff, the town’s Board of Adjustment has upheld the decisions made by the town to remove the temporary posts installed on the beach earlier this year.

 Related: Interactive timeline of events at Freeman Park 

Owners of property located near Freeman Park claimed the town was acting outside of its purview by removing temporary rope fencing placed on the dry sand beach.

When it comes to private property and the beach, state laws can become convoluted. Technically, private property near the ocean can extend all the way to the mean high water mark, the average line of high tide.

But although a person can technically own the land, there are limits to what is permitted — since another law has precedence.

According to state law, “The public having made frequent, uninterrupted, and unobstructed use of the full width and breadth of the ocean beaches of this State from time immemorial, this section shall not be construed to impair the right of the people to the  customary free use and enjoyment of the ocean beaches, which rights remain reserved to the people of this State under the common law and are a part of the common heritage of the State recognized by Article XIV, Section 5 of the Constitution of North Carolina. These public trust rights in the ocean beaches are established in the common law as interpreted and applied by the courts of this State.”

This means even though property owners can claim ownership of the beach, state law acknowledges the public’s access to dry sand beaches as part of public trust, and therefore owners can not limit access to the beaches.

The public trust grants public access to the dry sand beaches from the toe of the dunes to the water.

Attorney Clifton Hester argued on behalf of Freeman Beach LLC during a Board of Adjustment hearing Tuesday (Port City Daily/Courtesy Carolina Beach)
Attorney Clifton Hester argued on behalf of Freeman Beach LLC during a Board of Adjustment hearing Tuesday (Port City Daily/Courtesy Carolina Beach)

A quasi-judicial hearing

Board of Adjustment meetings such as the one Tuesday night are considered quasi-judicial and anyone wishing to present testimony has to be sworn in.

Those who choose not to swear in under oath may still speak, but anything said cannot be considered testimony only an argument.

Clifton Hester, the attorney representing the landowners’ corporation, Freeman Beach LLC. chose not to swear in.

According to Hester, his clients were aware of town regulations but felt their actions were not in violation of town ordinance.

He also said the actions taken by the LLC were in the best interest of the beach were done to protect it. Hester said his clients were told by the state’s Department of Coastal Management they could plant grass on the beach without a needing to acquire a permit.

Ultimately, the Board of Adjustment heard from Hester as well as other representatives from Freeman Beach LLC., and town staff, and reaffirmed the decisions made by the town to remove the fencing.


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