By Michelle Wagner | Outer Banks Voice on February 29, 2020
A Camden County Superior Court judge has ruled that the Sea Breeze beach access in the Duck subdivision of Sand Dollar Shores is now within the town’s jurisdiction and belongs to the public. The ruling marks a major win for local business owner Bob Hovey and his wife, Tanya, who filed a suit last August against that neighborhood’s homeowners’ association, arguing that the walkway was in the public trust.
Judge Lamott Wiggins on Feb. 14 granted the Hoveys a summary judgment without a trial. In his ruling, Wiggins stated, “It is declared that the “8’ pedestrian beach access easement…is an easement dedicated to the general public for the purpose of providing pedestrian access to the Atlantic Ocean beach held in the public trust by the State of North Carolina and is now in the jurisdiction of the Town of Duck.”
Hovey, who owns Duck Village Outfitters and has for years led a crusade for public beach access in the northern Outer Banks town, posted the news of the Feb. 14 ruling on his Facebook page on Feb. 29. “It’s been a long struggle, but the public can now enjoy the beach in Duck, N.C. on the Outer Banks,” Hovey wrote.
In an interview with the Voice, Hovey said that he hoped to work with the Town of Duck and the Sand Dollar Shores Homeowners’ Association (HOA) to continue to enhance beach access in the municipality. “Hopefully this will open the doors for some better opportunities for the public,” he said.
Hovey noted that he anticipated an appeal by the HOA, which would have to be filed within 30 days. Such an appeal process could take up to two years, but Hovey noted that “until the court says otherwise, it’s public at this point.”
Duck Town Manager Christopher Layton told the Voice that the town had signed a “consent order” with both parties saying that “we were going to abide by whatever the ruling is. This is an issue between two property owners.” According to Wiggins’ ruling, the town was a “nominal defendant” in the suit and did not participate in arguments, present evidence or materials.
Layton added that pending any appeal, the walkway is “a public access at this point,” noting that the ruling, while making the access public, does not obligate the town to do anything further at this point. The Voice was unable to reach Sand Dollar Shores Homeowners Association attorney Casey Varnell for comment.
The civil case was originally scheduled for Dare County Superior Court on Feb. 3, but it was continued to a later date in Camden County. The complaint argued that the Sand Dollar Shores Homeowners’ Association was “without authority to declare” the Sea Breeze beach access as common area for the exclusive use of its members and declared that the roads and easements in that neighborhood were dedicated to the public in 1981.
A staple in the Outer Banks surf community, Hovey filed the complaint in Dare County Superior Court several months after being arrested and charged with second-degree trespassing last May when attempting to use the access at the end of Sea Breeze Drive. But in light of the recent ruling, both Hovey and his attorney in that case, Angelea Norcross, said they were confident that charge would now be dropped.
“I feel confident they will make the right decision and dismiss the charge,” Norcross told the Voice. “[The walkway] was found to be public, there should be no doubt that he was not guilty of trespassing…Even if it is appealed, I still think there was reasonable doubt at the time Bob was arrested.”
A viral video of him being confronted by two angry homeowners at the time of the arrest helped to push the issue of public access in Duck onto the front burner. Soon after his arrest, Hovey launched a fundraising campaign that raised more than $13,000 toward legal efforts to secure public beach access in the municipality.