Thursday, June 13, 2024

Part One: Freeman Park landowners allege town is using public trust doctrine to run for-profit operation

The public trust law works both ways --- it gives people the right to enjoy the beach, but it may also prevent the town of Carolina Beach from profiting off of it. A series of lawsuits between Freeman Park property owners and the town will likely answer that question, and could dramatically change the way the park operates.

New ropes and posts have been installed in Carolina Beach's Freeman Park, but it is not the work of private property owners (Port City Daily photo/JOHANNA FEREBEE)
New ropes and posts installed by Carolina Beach at Freeman Park — part of an ongoing back and forth between the town and private landowners. (Port City Daily photo/JOHANNA FEREBEE)

CAROLINA BEACH — The Town of Carolina Beach has once again found itself facing litigation alleging town actions have violated the constitutional rights of individuals.

The last time the town faced such claims a lawsuit was brought forward by the Institute for Justice on behalf of food truck operators who felt town laws were too restrictive.

Related: Part two — Property owners fight Carolina Beach over ability to market or develop Freeman Park land

Now, the town faces accusations from property owners at the north end of the island near Freeman Park alleging violations of the Fifth Amendment, as well as the North Carolina Consitution.

There are currently four pending cases in New Hanover County Superior Court where the Town of Carolina Beach is the plaintiff, and private LLCs are the defendants.

These cases were filed by the town against the LLCs to utilize eminent domain to restore beaches through a renourishment project.

But property owners are fighting back against what they say is unjust compensation as well as several other claims against the town including allegations of abusing the public trust doctrine.

In fact, the property known as and marketed as “Freeman Park” is actually private property.

A brief recap

In order to understand the arguments the property owners have made, it is important to understand who technically owns what — and how the fracas over Freeman Park got started.

The Town of Carolina Beach operates Freeman Park where visitors are allowed to drive on the beach, camp, and partake in various beach activities — but the town does not own the property — in fact, it is not even in the town limits.

Freeman Park actually lies within the town’s extraterritorial jurisdiction meaning it is not within the municipal limits, but the town is granted permission to police and operate in the area.

The property at Freeman Park, including the beaches are technically owned by private entities, but in the State of North Carolina, beaches are part of what is known as public trust.

This means that although private property owners can claim ownership of the beach, the public has the right to access the beaches.

The only property the town actually controls and owns is the land where the entrance to the park is. Also, the town can only regulate who drives through its property hence the charging and monetization of the park.

The beaches within the “park” are actually not the town’s land but private property under public trust laws.

Properties at Freeman Park has been purchased by private corporations, although most of them are owned by the same individuals (Port City Daily/Courtesy Carolina Beach)
Properties at Freeman Park has been purchased by private corporations, although most of them are owned by the same individuals (Port City Daily/Courtesy Carolina Beach)

Most of the property in question at Freeman Park has been bought up by private corporations over the past couple of years and in February, tensions between the town and LLCs reached a boiling point.

Related story: Freeman Park property now in the hands of LLCs. Is development in the future?

Property owners took it upon themselves to install sea oats and a rope fencing along the beach in what they claimed was an attempt to restore the dunes.

However, in North Carolina, the public trust doctrine makes it clear what exactly the public has a right to, that is, dry sand beaches.

According to the doctrine, the public trust lands are located from the mean-high-water line to the toe of the dunes. This means the first line of stable vegetation.

Had the property owners been successful, they would have brought their property line from "C" to "A" --- "B" shows the sea oats they had planted on the beach at Freeman Park (Port City Daily/Johanna Ferebee)
Had the property owners been successful, they would have brought their property line from “C” to “A” — “B” shows the sea oats they had planted on the beach at Freeman Park. (Port City Daily/Johanna Ferebee)

If the property owners had been successful with planting the sea oats, their property line would have grown considerably — the town quickly put an end to the sea oats and rope fencing.

After the sea oats debacle, the town issued notices of intent to get the property in question for itself through eminent domain.

Eventually, the town conceded and rescinded the eminent domain threat, provided the property owners would allow the town to use the property to restore the beaches.

After rescinding the intention of eminent domain for the entirety of the properties, the town issued new notices for beach restoration.

Property owners respond

Apparently, the property owners did not feel like the eminent domain attempts were fair and have responded to the towns notifications — they are requesting a jury trial to decide on the claims.

The landowners have filed several counterclaims against the town including constitutional violations.

In the counterclaims outlined in one of the four suits pending, Carolina Freeman, LLC claims the town offered to pay $1,500 as just compensation for the property — an amount the property owners deny is reasonable.

“The defendant’s entitlement to just compensation for the taking of its property is a fundamental right guaranteed by both the North Carolina Consitution and the United States Constitution. The Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Section 19 of N.C. Constitution require that just compensation be paid, including all costs of defense,” according to the counterclaims.

Abuse of the public trust doctrine?

The litigation might be about eminent domain but property owners are fighting back against the town over more than one issue. In the introductory statement by Carolina Freeman, the owners claim the town is utilizing the public trust doctrine as a for-profit operation by running Freeman Park.

This inverse condemnation action against the town concerns the limits of what constitutes “public trust rights” held by the State for the benefit of the public, and whether a local municipality may rely on the “public trust doctrine” to conduct a commercial, for-profit operation on privately owned beachfront property that allows the public to use the privately owned property for activities such as overnight camping, campfire, off-road four wheeling, and alcohol consumption,” the counterclaims state.

The LLC concedes the dry sand beach is private property subject to public trust rights but also acknowledges the property north of the dunes is private property and not subject to the public trust laws.

The counterclaims also alleged the town has wrongfully established and leased campsites on the defendant’s property.

“While the campsites established by the Town are located mostly on the Defendants dry sand property, the campsites at times encroach into and damage the dunes and vegetation lining the ocean beach and thus encroach into the defendant’s private uplands,” according to court documents.

There are also allegations that the activities that take place in Freeman Park are invasive and damaging to the property and property values including off-road four-wheeling in the dunes, campfires, and alcohol consumption leading to illegal activities.

The landowners are also claiming the town is failing to protect the private property and has failed to allow them to take action defending their land.

The town has also failed to enforce its own regulations that ban driving within 10-feet of the dunes, despite repeated requests by the defendant for the town to enforce these regulations. The town’s actions have thus ensured that the defendant’s private upland will continue to suffer from unauthorized use, trespass, and damage by the public.

As a result, the LLCs issued a letter to the town, requesting a stop to all camping at Freeman Park to prevent damage the landowner’s property — the town has refused.

Editors note: Part two of this series will look further into the claims and the requests for relief the corporations have requested.

Michael Praats can be reached by email at or on Twitter @Michael_Praats

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