By Kip Tabb | Outer Banks Voice on June 19, 2019
May 29, about 8 a.m. at the Sea Breeze Drive access in Duck. As Bob Hovey approaches the path to the beach, his cellphone is recording when he is confronted by a man and a woman who tell him he is not permitted to use the access.
“You are on my property,” the man says, adding, “This is deeded to me.” He then curses at Hovey.
As the video continues, the woman tries to take his phone.
The two-minute, seven-second obscenity-laced video culminates with Hovey’s arrest by the Duck police for second-degree trespass.
Widely viewed on social media, the video dramatized a longstanding dispute between the Sand Dollar Shores Homeowners Association (HOA) and Hovey, the owner of Duck Village Outfitters, and put the town in the middle of a wider debate over public access to the public beach.
At the heart of the dispute is whether the Sea Breeze access and others in Duck are reserved for the exclusive use of HOA property owners or are available to the public.
Money also came from the Dare County Beach Nourishment Fund. The fund was established under state legislation in 2002 authorizing the county to assess an additional 2 percent occupancy tax paid by visiting renters solely for beach nourishment. All of the towns, except Manteo, have tapped the fund for beach work. The county provides no funding from county property tax revenues.
Nourishment projects require a permit from the U.S. Army Corps of Engineers, which is responsible for oversight but provides no funding.The dry sand beach is deeded to private property owners but can used by anyone under the Public Trust Doctrine in North Carolina.
Here is what the Corps says about access in the context of beach easements provided by oceanfront property owners for nourishment work:
Will the public have the right to use the beach on my property?
Yes. The Corps requires that the beach remain open to the public for use. The public will be able use the beach on which the easement has been placed in a reasonable and lawful way.
It does not, however, turn the beach into a municipal beach that is controlled by the government. It still remains private property.
In addition, the public will not be permitted to use any portion of the property beyond restrictions set in the easement. For example, the public is not permitted to traverse the property in order to get to the beach.
In North Carolina, the beach to the dune line is considered public and anyone can use it. Access, however, is not a public right. If a property owner does not wish to grant access, they cannot be compelled to.
Unlike Kitty Hawk, Kill Devil Hills and Nags Head, Duck has no public access to the ocean. The town is not unique in that regard. Southern Shores has no public access and many of the villages on Hatteras Island have very limited options.
How Duck was developed, though, was unlike the other Outer Banks towns. That difference is at the heart of Hovey’s belief that the town does have public access.
N.C. 12 closely parallels the Atlantic Ocean in most towns. But in Duck there are wide distances between the state road and the beach. By comparison, as Ocean Boulevard travels through Southern Shores, single lots separate the road and the beach.
When the county first platted Duck, there were multiple properties between N.C. 12 and the Atlantic Ocean.
“In Duck, there were big rectangular plats of land that had parallel property lines that went from the Ocean to the sound in an east to west direction,” Hovey said.
“When the developers bought the land, their sole intention was to make money. They weren’t trying to better the town,” he adds. “It was an investment. They divided them up into as many parcels as they thought they could make the most money.”
To be marketable, there must be access to a property. To do that, Hovey says, the developers took a small slice out of properties going to the ocean.
“They created the easement to go right down the center of the street and extended it out into the ocean,” he said. “By putting the easement across two pieces of land, the land was still very much marketable and very viable.”
The developers would then build a road to NCDOT specifications and give the road to the state.
“Then it only would be the responsibility of the state department of transportation,” Hovey said.
Unlike most states, North Carolina towns and counties neither own nor maintain public roads; that is solely the responsibility of the state.
“The town doesn’t own any roads,” Town Manager Chris Layton said. “The roads are either DOT maintained or they’re private roads maintained by the HOAs.”
That roads in the Sand Dollar Shores HOA such as Sea Breeze or Plover are public and maintained by the state is not at issue. Hovey’s contention is that in 1983, when the developers granted the easement for the roads to the state, that easement went to the beach. It did not end at a cul-de-sac or at an oceanfront property.
Attorneys at Sharp, Graham, Baker and Varnell, who represent the Sand Dollar Shores HOA, asked to not be quoted for this article but did agree to outline their client’s position.
They noted that the language is standard for granting an easement for public use roads, but that the grant does not extend to private property on the beach, noting that the access is designated for the private use of the HOA.
The May 29 encounter was the culmination of Hovey’s ongoing dispute over access to the beach in Duck.
In 2016, Hovey and his wife, Tanya, brought suit against the Sand Dollar Shores HOA. In their court filing they say that they “have been denied access to the Atlantic Ocean by the HOA over the pedestrian beach access easement located at the east end of Sea Breeze Drive.”
The document goes on to state, “The Hovey’s have the right to use the … 8-foot pedestrian beach acces …”
In their motion to dismiss the case, Sand Dollar Shores attorneys pointed out that to be public access the easement would have to be specifically designated as public access. The easement language does not do that. It simply refers to it as a ” “Pedestrian Beach Access Easement,” the motion says.
According to Hovey, he simply ran out of money to pursue the case and it was dismissed but never resolved in 2017. The judge dismissed the case without prejudice — a finding that allows the suit to be reinstated at a future date.
Town of Duck: Caught in the middle
When Hovey posted the video of his confrontation and arrest on Facebook and Youtube, it quickly gathered thousands of hits, and much of the reaction held Duck responsible for the lack of public access.
Town Manager Chris Layton is quick to push back against that. Duck did not incorporate until May of 2002, 20 years after the oceanfront properties had been platted. Much of the property had already been sold when the town incorporated.
“All oceanfront property was developed and platted before we became a town,” Layton said.
As a consequence, the town has never had a public beach access.
“The position of the town is that we do not own or maintain any access points. Because we do not own them, we cannot give permission or not give permission for people to use those,” he said.
Even if an access was designated public, it would not mean that the path or trail would be immediately available for public use. Most of the streets running to the ocean end in cul-de-sacs or dead ends.
“If you have a public access point you have to have the parking you also typically have to have restrooms and other facilities there … You have to provide for those things. That certainly increases the room that you need. We are talking about roads that are in subdivisions. They aren’t pop outs off N.C. 12,” Layton said.
Layton makes it clear, though, that if an opportunity arose, the town would pursue it.
“If someone were willing to come to us and say, ‘We will give you or negotiate to use this point as an access point for the general public.’ That could be something we could explore,” he said. “No one has come forward and said that. That doesn’t mean it couldn’t happen, but that hasn’t happened so far.”
At the June 5 Town Council meeting, Mayor Don Kinston, responding to an email from Hovey, seemed to acknowledge in his response that Duck would have to address public access.
“The Town Council is open to discussing this issue at a future date when tensions are eased and engage interested stakeholders in this dialogue. Staff will develop a plan for this discussion over the coming months. In the meantime, the Town is updating its Comprehensive Plan and CAMA Land Use Plan and there will be opportunities to provide comments on state road parking and beach access, through surveys and public meetings during this process,” Kinston said.
The first public forum after the May 29 incident, the June 5 Town Council meeting was notable for its lack of rancor. Twelve speakers came to the podium. Only one spoke in favor of continued private access.
A number of speakers asked about the possibility of public access at the Duck Field Research Facility (Duck Pier). At one time, before 9/11, the public could use the beach next to the facility. That is no longer the case with access controlled by a locked gate.
The town is aware of the potential for public access on the property, according to Layton, and has taken steps to make it easier for the public to use it if it becomes available.
“Years ago we rezoned that property conservation and recreation. If it ever did come available, there would be one other hurdle to it becoming developed as residential. Somebody could come in and rezone it residential, but the idea would be that if that ever becomes available the town could use it for recreational access purposes,” he said.
Layton also noted that the town has at various times asked about access but has been rebuffed.
“We’ve asked in the past,” he said. “We’ve asked pretty much knowing the answer. But we asked. And we got a no. And we asked again and we got a no. Nothing has changed.”
The Outer Banks Voice contacted the Corps of Engineers for their position on public access to the Field Research Facility (FRF) and the response from Robert DeDeaux Public Affairs Officer indicates granting public access would be difficult.
Here is the full email response:
The scientists, engineers and researchers of the Field Research Facility (FRF) place the safety of the public and the citizens of the Town of Duck as their highest priority. Since its establishment in 1977, the FRF has acted in accordance with public land and safety policies and in accordance with DoD guidelines. As an internationally recognized Department of Defense (DoD) Laboratory encompassing approximately 176 acres and a little more than a 1/2 mile of North Carolina coastline, the FRF is responsible for collecting valuable data on waves and current behavior along shores, seafloors and coastlines. To successfully perform this important mission, a wide range of measuring instruments lining the shore and immediate areas and sensors not visible above the water are needed. This equipment can pose safety concerns to individuals who may walk, swim or surf in these areas. Signs have been posted alerting the public to the potential dangers and access to these areas is prohibited.
There still may be some form of compromise, although given the history over the past 19 years since 9/11, it is unclear what that would be.
Yet public access to the FRF seems to be the gold standard, something Hovey feels may be the best way out for everyone.
“That would be amazing. It would be a dream,” he said. “It would be a beautiful public beach within an easy drive that the public can access. That would be a win for everybody.”