Appeals Court rules Duck beach access is private

By on April 7, 2021

A North Carolina Court of Appeals has reversed a February 2020 decision from a Camden County Superior Court judge, ruling on April 6 that the Sea Breeze beach access in the Duck subdivision of Sand Dollar Shores is, in fact, private.

Bob Hovey, owner of Duck Village Outfitters, has for years led a crusade for public beach access in the northern Outer Banks town and filed suit in 2019 against the neighborhood’s homeowners’ association arguing that the walkway was in the public trust.

A staple of the Outer Banks surf community, Hovey filed the complaint several months after being arrested and charged with second-degree trespassing in May of 2019 when attempting to use the access at the end of Sea Breeze Drive.

While noting that the subdivision, easement and homeowners’ association predates the incorporation of the town, the Court of Appeals ruling states: “The Town has not sought to establish a public beach access and generally maintains that all of the beach access locations within the town limits of Duck are located on private property. This Court must uphold these private property rights under the law.”

The ruling goes further and states that the Plaintiff, in this case Bob and his wife Tanya, are not barred from the beach. “They may, as suggested by counsel, negotiate for access with [Sand Dollar Shores HOA] or, failing that, drive to nearby municipalities or any unincorporated areas in the county to the north and south that maintain public beach accesses.”

Hovey told the Voice following the ruling that he was considering appealing the court’s ruling and that he was meeting with his attorney on April 8 to determine what steps to take next.

An April 7 statement from the Town of Duck, emailed to the Voice, read: “The Town has been informed of the recent decision regarding the beach access located in the Sand Dollar Shores Subdivision. The Town will abide by the decision of the Court and remains neutral regarding this dispute between the plaintiffs and defendant.”

 

 

 




Comments

  • obx_joe

    Duck beaches are private THEREFORE NO COUNTY or STATE funding for beach nourishment of private property

    Wednesday, Apr 7 @ 2:19 pm
  • Jim T

    The beaches in Duck are not private. All beaches in NC are public. However, one cannot trespass on or across private property to get to the public beach. Go to a designated public beach access point to get to the beach, exactly as the 3 NC Court of Appeals Judges unanimously advised.

    Wednesday, Apr 7 @ 4:08 pm
  • Sandy

    The town has never been “neutral” as they say. Thier inaction all these years has been bought and paid for by those HOA’s. This stinks like bad sushi. Appeal Bob!!

    Wednesday, Apr 7 @ 4:50 pm
  • dan

    The town says that they remain neutral in this dispute, however they arrested Mr. Hovey for standing on a public road. That doesn’t seem very neutral. Also check out the town of duck instagram, lots of stuff of about equal rights. Someone should let them know equal rights means the public should be able to go to the beach in their town. Right now it’s just access for the rich and beach nourishment to protect the millionaire out of town ocean front home owners who think they own the town, well I guess they kinda do. I wish the voice would interview the Duck police chief. Why did they arrest Hovey for standing on a public road, why did he receive a recent settlement payment from the town related to the former town manager?

    Wednesday, Apr 7 @ 5:32 pm
  • runnerguy45

    joe is right, no funding for their beaches.

    Wednesday, Apr 7 @ 5:46 pm
  • Louise

    This makes my blood boil. So anyone that lives in Duck can not go to a beach access that we pay taxes on? The so called “northerners” always win. Locals just can’t seem to catch a dang break. They want private beaches? They can pay for their own beach nourishment out of their own pockets. Enough is enough. Can someone take care of the locals for a change???

    Wednesday, Apr 7 @ 6:56 pm
  • OBX-jay

    Hold on there, big fella – the beaches are public. It’s the beach accesses in most subdivisions that are private. Beach nourishment is done to the public beaches, not the private property adjacent to the public beaches. I may agree with your sentiment about nourishing beaches, actually, but don’t conflate these two issues.

    Wednesday, Apr 7 @ 7:36 pm
  • Old timer

    I remember the good old days when Duck was unincorporated and locals who worked or owned the shops could go early morning surfing before work and park down Scarborough lane with out being arrested. What a privileged entitled selfish greedy place the outer banks has become.
    Our Dare taxes are paying for beach nourishment to protect the ocean front rentals instead of providing good safe activities for LOCAL teens and young children.
    Tax the rich , feed the poor, house the homeless, be humble and kind.

    Thursday, Apr 8 @ 12:26 am
  • OBX-Joe

    NOW it seems like we consider the beaches PUBLIC for some purposes but ACCESS to those PUBLIC beaches is closed to the PUBLIC and even to taxpayers in Duck.
    If Duck is providing police, fire, lifeguard and EMT services to those areas of the beach that have private access, then that service should stop until the PUBLIC has access to those services without having to walk miles along the PUBLIC beack from Southern Shores.

    Thursday, Apr 8 @ 6:45 am
  • lippy

    OBX-jay has boiled it down to the simplest of explanations. Beach access private, beach public.

    Thursday, Apr 8 @ 8:14 am
  • Jeff D

    The 18 page ruling cites a lot of facts supporting the 3 Judges’ unanimous decision in favor of the HOA. For information purposes: https://appellate.nccourts.org/opinions/?c=2&pdf=39934 The only noted public dedication on the recorded plat is for “the streets and roads.” That’s followed by the Covenant Restrictions limiting access to the private property Easement to HOA property owners and guests, date-stamped just two days later by Dare County. Not much room for an appeal, there. The 3 Judges thoroughly shot down all of Hovey’s attorney’s arguments.

    Thursday, Apr 8 @ 9:07 am
  • Pete

    The entire beach in NC is public. That’s why tax dollars maintain it. Access points on private property, regardless of town, are not public and tax dollars do not pay to maintain them, the owner or HOA members pay for that. Just go to a public access point to get to the beach and once on the beach, walk to wherever you wish. The NCDNR has a resource map: https://ncdenr.maps.arcgis.com/apps/webappviewer/index.html?id=0ce9cc86d3d94b9db9f4bb0ec50b6f81

    Duck is not the only town that does not have a public beach access point but it does have a public Sound access point, including a public kayak/canoe launch. Many towns don’t have that.

    Thursday, Apr 8 @ 10:30 am
  • surf123

    This should serve as a reminder to those who think they are above the law or do not have to recognize property rights. The land belongs to the HOA and individual landowners and there is no public access through their land. The rights of private landowners were established prior to the founding of the nation. I do not live on the oceanfront, but regularly catch people crossing my yard because they do not want to walk around. I can assure you they never make it and turn back. I am vigilant and remind them that they would never agree to someone crossing through their backyard wherever that is. Most are agreeable and have never had anyone challenge me. Should someone refuse to acknowledge me and continue to cross they will not make it. Trespassing is trespassing no matter what someone thinks it is.

    Thursday, Apr 8 @ 11:01 am
  • Mark Jurkowitz | Outer Banks Voice

    Surf, I think you could have made your point just as well without an implicit threat of violence.

    Thursday, Apr 8 @ 12:34 pm
  • The Wall

    So the beach is public, but essentially there is a “wall” of private property keeping the public from enjoying the beach. Sounds like the HOA is doing a better job than our federal government.
    So Jim T – where is the nearest “public access” to your (our) public beach?
    Just like NJ no access to beaches really results in “private” beaches.
    The Town of Duck is a joke and couldn’t care less about the public.

    Thursday, Apr 8 @ 12:46 pm
  • hightider

    It is simple to understand that beaches are public per the mean high tide line but accesses (unless designated as public) are private. This is a huge issue in beach communities across the nation. These beach areas that are technically open to the public but are not “public beaches” lack bathroom facilities and trash receptacles. In Florida it is not unusual to find someone “using the facilities” in some luckless strangers yard. Or having someone knock on the door demanding to use your bathroom or be provided with water. Private property is private; no one wants the peaceful enjoyment of their home disrupted by a total stranger. No one wants to hear loud music emanating from a few yards away by someone who can’t enjoy the beach in silence. Or walking through your yard because it is quicker. Or leaving bottles and food wrappers.

    Thursday, Apr 8 @ 1:57 pm
  • Robert M Sowell

    Why would I want to vacation in a town that doesn’t have beach access?

    Prohibiting access to public waters.

    Boycott bad beaches

    Thursday, Apr 8 @ 2:13 pm
  • Ray

    I have lived in Duck since before unit was a town , & Everyone is pointing fingers and mad at the wrong people , The Town of Duck is now at fault , though it is a difficult task , the towns leaders must procure a public beach access point or points . The way the ruling plays out , most of the people vacationing in duck have no legal access to the beach in Duck , or southern shores even , they must travel 5 miles or so to 1 , with a over 10 million dollar budget for the town of Duck this year , they must do more to rectify this , or we get new leadership in Duck … saying the beach is public but access to it is not , is akin to saying oxygen is free , but breathing it is not , …..
    Ridiculous ❗️

    Thursday, Apr 8 @ 5:16 pm
  • Melissa

    Not true at all, Ray. 95% of the homes in Duck belong to an HOA that has a beach access. Vacation renters use the beach access that corresponds to the HOA in which they’ve rented. This isn’t a problem. Look around the beach in Duck in July and August. Plenty of families enjoying a fabulous beach vacation. 🙂 They all got to the beach by using their vacation rental’s HOA’s access point.

    The gist of the problem? Literally ONE person made a complete ass of himself because he knowingly bought a vacation rental home in Duck that was not among the 95% that have beach access. He bought it because it was cheap (rightly so), and then he tried to profit from it by using others’ private property, privately maintained beach access for free.

    Thursday, Apr 8 @ 8:53 pm
  • obx-Joe

    Melissa makes a good point. Tourists benefit from the HOA rules about beach access while other residents of Duck who happen to live on the wrong side of the road are just cheap assess who are SOL in Duck when they want to visit the beach and have to go to Kitty Hawk. Good observations Melissa

    Sunday, Apr 11 @ 6:50 pm