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A�IAV
RC'DENR
... JAMES B. HUNT JR.
,.:GOVERNOR
WAYNE MCDEVITT
SECRETARY
s
DONNA D. MOFFITT
DIRECTOR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF COASTAL MANAGEMENT
April 9, 1999
Carteret County Sheriff's Department
P.O. Box 239
Beaufort, NC 28516
RE: Service of Document Upon Mr. Marvin Cardon
Dear Sir:
APR 15 1999
As our Department has been unable to serve the enclosed Notice of Violations(s) and
Request to Cease and Desist upon Mr. Marvin Cardon, by Certified Mail, we would
greatly appreciate utilizing the Carteret County Sheriff's Department to do so. The
directions to Mr. Marvin Cardon's residence are as follows: at 119 Loblolly Drive, in
the Town of Pine Knoll Shores.
Enclosed are the Notice and Request, the original and one (1) copy of the Notice of
Service, and a check for $5.00. Please return the original of the completed Notice of
Service and a receipt for the $5.00 fee to me as soon as possible. If you have any
problems or questions, you can contact me at my Morehead City office, or by phone
[phone].
Thank you very much for your cooperation in this matter.
Sincerely,
M. Ted Tyndall
District Manager
Enclosures
cc: Charles Jones, Assistant Director
MOREHEAD CITY OFFICE
HESTRON PLAZA II 151-B HIGHWAY 24 MOREHEAD CITY NC 28557
PHONE [phone] FAX [phone]
AN EQUAL OPPORTUNITY /AFFIRMATIVE ACTION EMPLOYER - 50% RECYCLED/10% POST -CONSUMER PAPER

14
STATE OF NORTH CAROLINA
COUNTY OF CARTERET COUNTY
APR 1. 51999
IN THE MATTER OF THE NOTICE OF VIOLATION(s) )
AND REQUEST TO CEASE AND DESIST VIOLATIONS(s) ) NOTICE OF SERVICE
OF THE COASTAL AREA MANAGEMENT ACT AND/OR )
DREDGE AND FILL ACT )
TO: SHERIFF, CARTERET COUNTY
YOU ARE HEREBY REQUESTED TO serve the attached document in the above entitled action to the
individual listed below:
MR. MARVIN CARDON
119 LOBLOLLY DRIVE
Pine Knoll Shores, NC 28512
This the 12TH day of April, 1999.
M. Ted Tyndall, District Manager
Department of Environment & Natural Resources
Division of Coastal Management
151-B Hwy. 24, Hestron Plaza II
Morehead City, NC 28557
Telephone: [phone]
RETURN OF SERVICE
n
I certify that this Notice of Service was received on the 3 day of 19 f , and together
with the document was served as follows:
On
place:
7
on the /3 day of �f 19f at the following
(fill in address where copy was delivered or left)
BY: Delivering copies to him personally
Leaving copies with who is a person of suitable age and
discretion and who resides in the named individual's dwelling house or place of business.
If NOT served on the named individual, state reason:
FEE: $ , SnRIFF OF COUNTY, NC
PAID: BY: 4 DEPUTY
BY: DATE: — /,V— 7 , 19 T

STATE OF NORTH CAROLINA
COUNTY OF CARTERET COUNTY
IN THE MATTER OF THE NOTICE OF VIOLATION(s) )
AND REQUEST TO CEASE AND DESIST VIOLATIONS(s) )
OF THE COASTAL AREA MANAGEMENT ACT AND/OR )
DREDGE AND FILL ACT )
TO: SHERIFF, CARTERET COUNTY
APR 1 #171,1999
NOTICE OF SERVICE
YOU ARE HEREBY REQUESTED TO serve the attached document in the above entitled action to the
individual listed below:
MR. MARVIN CARDON
119 LOBLOLLY DRIVE
Pine Knoll Shores, NC 28512
This the 12' day of April, 1999.
M. Ted Tyndall, District Manager
Department of Environment & Natural Resources
Division of Coastal Management
151-B Hwy. 24, Hestron Plaza II
Morehead City, NC 28557
Telephone: [phone]
RETURN OF SERVICE
I certify that this Notice of Service was received on the /3 day of 19121 and together
with the document was served as follows:
c ,
on the day of 19 at the following
place
(fill in address where copy was delivered or left)
BY: Delivering copies to him personally
Leaving copies with who is a person of suitable age and
discretion and who resides in the named individual's dwelling house or place of business.
If NOT served on the named individual, state reason:
FEE: $ HERIFF OF COUNTY, NC
PAID: BY: I , DEPUTY
BY: DATE:- - !` j' , 19

Z 0-7 �t 9ai,1, 048
e
Receipt for
Certified Mail
No Insurance Coverage Provided
u.,E�� Do not use for Iernational Mail
e05TlLL 5ErrvICE 9-- n rI 0_
(See Reverse) 1
Sent to
Marvin Cardon
Street any .08 Camrose St.
P.O., States and ZIP Code
Ralt-igb, 9760A
Postage
A
7
Certified Fee
Special Delivery Fee
Restricted Delivery Fee
hi
Retum-Aeea� ng
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tc, "om & Date ANy,�?ed
Re Shovai Whom,
�eceipt
Dat d Addressee's garess
TOTALstage
& Fees
PostmarktDate ti
66

i
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF COASTAL MANAGEMENT
f
CERTIFIED MAIL
NCDENR RETURN RECEIPT REQUESTED April 9, 1999
Mr. Marvin Cardon
JAMES B. HUNT JR. 2108 Camrose St.
GOVERNOR - Raleigh, NC 27608-1669
RE: NOTICE OF VIOLATION(s) AND REQUEST TO CEASE UNAUTHORIZED
WAYNE MCDEVITT DEVELOPMENT
SECRETARY , CAMA VIOLATION #99-07C
Dear Mr. Cardon:
DONNA D. MOFFITT This letter confirms that on February 5, 1999, I was on your property at 119 Loblolly
DIRECTOR Drive, adjacent a manmade canal off Bogue Sound, in Pine Knoll Shores, Carteret County.
It also confirms a joint site visit with Mr. Roy Brownlow, Pine Knoll Shores Building
Inspector and CAMA Local Permit Officer, on February 1, 1999, without your attendance..
Information I have gathered for the N. C. Division of Coastal Management shows that you
have undertaken Major Development in violation of the Coastal Area Management Act
(CAMA). No person may undertake Major Development in a designated Area of
Environmental Concern without first obtaining a permit from the N.C. Department of
Environment and Natural Resources. This requirement is imposed by N.C. General Statutes
(herein abbreviated N.C.G.S.) 113A-118.
Information I have indicates that you have undertaken Major Development by constructing
approximately 60 ff of additional dock and installing 2 mooring cleats (adding at least one
more if not two more slips) on your existing dock at the aforementioned site. In addition,
you have extended the high ground end of the existing concrete boat ramp by approximately
six feet. From the information I have, both development activities encroached either onto
or within the riparian area of the adjacent property owner. This unauthorized development
took place in the Estuarine Waters, Public Trust Areas, and Estuarine Shoreline of the
manmade canal off Bogue Sound. No permit was issued to you for the previously described
development. Therefore, I have concluded that you are in violation of the permit
requirement of the Coastal Area Management Act.
I request that you immediately CEASE AND DESIST any further development. Since the
development you have undertaken may not be consistent with the applicable standards, you
may be required to restore the area to its former condition. A civil assessment of up to
$2500.00 may be assessed against any violator. Each day that the development described
in this Notice is continued or repeated may constitute a separate violation which is subject
to an additional assessment of $2500.00. An injunction or criminal penalty may also be
sought to enforce any violation (NCGS 113A-126).
MOREHEAD CITY OFFICE
HESTRON PLATA II 151-B HIGHWAY 24 MOREHEAD CITY NC 28557
PHONE [phone] FAX [phone]
AN EQUAL OPPORTUNITY / AFFIRMATIVE ACTION EMPLOYER - 50% RECYCLED/1 O% POST -CONSUMER PAPER

0
Mr. Marvin Cardon
Page 2
April 9, 1999
It is the policy of the Coastal Resources Commission to assess a minimum civil penalty of Three
Hundred Fifty Dollars ($350.00) against all violations. This is done to recoup some of the costs of
investigating the violation and/or to compensate the public for any damage to its natural resources.
Whether a higher amount will be assessed will depend on several factors, including the nature and area
of the resources which were affected and the extent of the damage to them. If restoration of the affected
resources is requested but is not undertaken or completed satisfactorily, a substantially higher civil
penalty will be assessed and a court injunction will be sought ordering restoration.
To bring the unauthorized major development into compliance with the CAMA, you must: 1) Provide
this office with either a survey showing that the high ground development associated with the boat ramp
extension is on your property or provide a letter from the adjacent property owner authorizing you to
undertake work on their property. If neither document is provided, then the boat ramp extension must
be removed. 2) Provide this office with a letter from Pine Knoll Association authorizing you to extend
your dock in front of their property or remove that section of the dock and the associated mooring cleats
not authorized by Mr. Roy Brownlow, Pine Knoll Shores Building Inspector and LPO on December 17,
1998 and as shown on the attached Restoration Plan.
Provided you intend to cooperate with this request, please sign one of the attached Restoration Plans and
return it to me in the enclosed, self-addressed envelope. No response from you within ten (10) days of
receipt of this letter will be interpreted as a refusal to cooperate and result in a Notice of continuing
violation and a court order will be sought ordering restoration.
Thank you for your time and cooperation. If you have any questions about this matter, please don't
hesitate to contact me at my Morehead City office [phone].
Sincerely,
M. Ted Tyndall
District Manager
Enclosures
cc: Charles S. Jones - Assistant Director, DCM
Charles Pigott - Coastal Management Representative
Roy Brownlow - Pine Knoll Shore, LPO
Richard Ray - PKA
Jeff Richter - USACOE

I
Mr. Marvin Cardon
Page 2
April 9, 1999
It is the policy of the Coastal Resources Commission to assess a minimum civil penalty of Three
Hundred Fifty Dollars ($350.00) against all violations. This is done to recoup some of the costs of
investigating the violation and/or to compensate the public for any damage to its natural resources.
Whether a higher amount will be assessed will depend on several factors, including the nature and area
of the resources which were affected and the extent of the damage to them. If restoration of the affected
resources is requested but is not undertaken or completed satisfactorily, a substantially higher civil
penalty will be assessed and a court injunction will be sought ordering restoration.
To bring the unauthorized major development into compliance with the CAMA, you must: 1) Provide
this office with either a survey showing that the high ground development associated with the boat ramp
extension is on your property or provide a letter from the adjacent property owner authorizing you to
undertake work on their property. If neither document is provided, then the boat ramp extension must
be removed. 2) Provide this office with a letter from Pine Knoll Association authorizing you to extend
your dock in front of their property or remove that section of the dock and the associated mooring cleats
not authorized by Mr. Roy Brownlow, Pine Knoll Shores Building Inspector and LPO on December 17,
1998 and as shown on the attached Restoration Plan.
Provided you intend to cooperate with this request, please sign one of the attached Restoration Plans and
return it to me in the enclosed, self-addressed envelope. No response from you within ten (10) days of
receipt of this letter will be interpreted as a refusal to cooperate and result in a Notice of continuing
violation and a court order will be sought ordering restoration.
Thank you for your time and cooperation. If you have any questions about this matter, please don't
hesitate to contact me at my Morehead City office [phone].
Sincerely,
M. Ted Tyndall
3entative
S

i
RESTORATION PLAN
FOR
MR. MARVIN CARDON
PROPERTY LOCATED AT 119 LOBLOLLY DRIVE, IN PINE KNOLL SHORES
CARTERET COUNTY
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I, Marvin Cardon, agree to either provide the above requested information or remove that section of
the dock and boat ramp that I constructed or had constructed, as requested. I agree to complete this
restoration by March 8, 1999 or provide the Division of Coastal Management with a reasonable request
for time extension.
Mr. Marvin Cardon
DATE: 19
It is the policy of the Coastal Resources Commission to levy at least a minimum civil assessment of 5350
against all violations of this nature. If restoration of the affected resources is not undertaken or
completed satisfactorily, a substantially higher civil assessment will be levied and an injunction sought
to require restoration.

R
' RESTORATION PLAN
FOR
MR. MARVIN CARDON
PROPERTY LOCATED AT 119 LOBLOLLY DRIVE, IN PINE KNOLL SHORES
CARTERET COUNTY
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' 2- 8.99
I, Marvin Cardon, agree to either provide the above requested information or remove that section of
the dock and boat ramp that I constructed or had constructed, as requested. I agree to complete this
restoration by March 8, 1999 or provide the Division of Coastal Management with a reasonable request
for time extension.
Mr. Marvin Cardon
DATE: , 19
It is the policy of the Coastal Resources Commission to levy at least a minimum civil assessment of $350
against all violations of this nature. If restoration of the affected resources is not undertaken or
completed satisfactorily, a substantially higher civil assessment will be levied and an injunction sought
to require restoration.

RESTORATION PLAN
FOR
MR. MARVIN CARDON
PROPERTY LOCATED AT 119 LOBLOLLY DRIVE, IN PINE KNOLL SHORES
CARTERET COUNTY
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2- 8-49
I, Marvin Cardon, agree to either provide the above requested information or remove that section of
the dock and boat ramp that I constructed or had constructed, as requested. I agree to complete this
restoration by March 8, 1999 or provide the Division of Coastal Management with a reasonable request
for time extension.
Mr. Marvin Cardon
DATE:
.19
It is the policy of the Coastal Resources Commission to levy at least a minimum civil assessment of $350
against all violations of this nature. If restoration of the affected resources is not undertaken or
completed satisfactorily, a substantially higher civil assessment will be levied and an injunction sought
to require restoration.

i
NCDENR
April 9, 1999
.f NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF COASTAL MANAGEMENT
JAMES B. HUNTJR.11 Carteret County Sheriff's Department
GOVERNOR P.O. Box 239
=`° z Beaufort, NC 28516
WAYNE MCDEVITT RE: Service of Document Upon Mr. Marvin Cardon
SECRETARY
Dear Sir:
As our Department has been unable to serve the enclosed Notice of Violations(s) and
DONNA D. MOFFITT Request to Cease and Desist upon Mr. Marvin Cardon, by Certified Mail, we would
DIRECTOR greatly appreciate utilizing the Carteret County Sheriff's Department to do so. The
directions to Mr. Marvin Cardon's residence are as follows: at 119 Loblolly Drive, in
the Town of Pine Knoll Shores.
Enclosed are the Notice and Request, the original and one (1) copy of the Notice of
Service, and a check for $5.00. Please return the original of the completed Notice of
Service and a receipt for the $5.00 fee to me as soon as possible. If you have any
problems or questions, you can contact me at my Morehead City office, or by phone
[phone].
Thank you very much for your cooperation in this matter.
Sincerely,
M. Ted Tyndall
District Manager
Enclosures
cc: Charles Jones, Assistant Director
MOREHEAD CITY OFFICE
HESTRON PLAZA II 1SI-B HIGHWAY 24 MOREHEAD CITY NC 28557
PHONE [phone] FAX [phone]
AN EQUAL OPPORTUNITY /AFFIRMATIVE ACTION EMPLOYER - 50% RECYCLED/10% POST -CONSUMER PAPER
1.
i
NCDENR
April 9, 1999
.f NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF COASTAL MANAGEMENT
JAMES B. HUNTJR.11 Carteret County Sheriff's Department
GOVERNOR P.O. Box 239
=`° z Beaufort, NC 28516
WAYNE MCDEVITT RE: Service of Document Upon Mr. Marvin Cardon
SECRETARY
Dear Sir:
As our Department has been unable to serve the enclosed Notice of Violations(s) and
DONNA D. MOFFITT Request to Cease and Desist upon Mr. Marvin Cardon, by Certified Mail, we would
DIRECTOR greatly appreciate utilizing the Carteret County Sheriff's Department to do so. The
directions to Mr. Marvin Cardon's residence are as follows: at 119 Loblolly Drive, in
the Town of Pine Knoll Shores.
Enclosed are the Notice and Request, the original and one (1) copy of the Notice of
Service, and a check for $5.00. Please return the original of the completed Notice of
Service and a receipt for the $5.00 fee to me as soon as possible. If you have any
problems or questions, you can contact me at my Morehead City office, or by phone
[phone].
Thank you very much for your cooperation in this matter.
Sincerely,
M. Ted Tyndall
District Manager
Enclosures
cc: Charles Jones, Assistant Director
MOREHEAD CITY OFFICE
HESTRON PLAZA II 1SI-B HIGHWAY 24 MOREHEAD CITY NC 28557
PHONE [phone] FAX [phone]
AN EQUAL OPPORTUNITY /AFFIRMATIVE ACTION EMPLOYER - 50% RECYCLED/10% POST -CONSUMER PAPER

STATE OF NORTH CAROLINA
COUNTY OF CARTERET COUNTY
IN THE MATTER OF THE NOTICE OF VIOLATION(s) )
AND REQUEST TO CEASE AND DESIST VIOLATIONS(s) )
OF THE COASTAL AREA MANAGEMENT ACT AND/OR )
DREDGE AND FILL ACT )
TO: SHERIFF, CARTERET COUNTY
NOTICE OF SERVICE
YOU ARE HEREBY REQUESTED TO serve the attached document in the above entitled action to the
individual listed below:
This the 9m day of April, 1999.
MR. MARVIN CARDON
119 LOBLOLLY DRIVE
Pine Knoll Shores, NC 28512
M. Ted Tyndall, District Manager
Department of Environment & Natural Resources
Division of Coastal Management
151-B Hwy. 24, Hestron Plaza II
Morehead City, NC 28557
Telephone: [phone]
RETURN OF SERVICE
I certify that this Notice of Service was received on the day of
with the document was served as follows:
On on the day of
place:
(fill in address where copy was delivered or left)
, 19 , and together
19 , at the following
BY: Delivering copies to him personally
Leaving copies with who is a person of suitable age and
discretion and who resides in the named individual's dwelling house or place of business.
-------------------------------------------------------------------------
If NOT served on the named individual, state reason:
FEE: $
PAID:
BY:
bY: _
DATE:
, SHERIFF OF
19
,DEPUTY
COUNTY,NC

MICHAEL TED TYNDALL
NCDL 3489816 PH 7W -e9 240-3331—
P O BOX 123
MOREHEAD CITY, NC 28557
FIRST CITIZENS i50
BANK
Flnbporl. N Bank E 1 Company
(B�fll\p SoulftporlNC PB661 I
FOR /✓0v 19- Fq-6 7C
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DCM ENFORCEMENT REPORT
(Use for Waivers)
Case #: g D?C' Permit #: 1,) 1A Consultant:
Name: Pv. /gGLr✓)n CO.Ucioh Address: 2109' Cc1LMv0&--e- S4.
City: State: IJC Zip: 2760 8 Phone #:
County: Nearest Water Body: C S. State Plane X:
LPO: ov Locality: State Plane Y:
Vio Descp: ItV Conr?kC- 60 '" czc(a�'7�`dY�al' oloc� 1Zx�
NOV Sent:o /07/ 9 Violation: Major: v ---Minor: Perm Cond: CAMA: ✓D&F: _
Restore: VkL Requested: 03 / 0 V / 5 7 Completed:
(Y.INo) (Mo) (Day) (Yr) (Mo) (Day) (Yr)
Estuary: ✓ Pub Trst: ✓ Shoreline: ✓ Ocean Hz: Other: Pri Nurs: ORW:
Wetlands: /V0
(Yes/No)
SA:
DS:
CJ:
SY:
JR:
LS:
TY:
SS:
SC:
SP:
IF:
BF:
WS:
MF:
TYPE
(AEC)
EXCAVATE
(Sq. Ft.)
FILLED
(Sq. Ft)
RESTORE
(Sq. Ft.)
OTHER
(Sq. Ft.)
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******* ASSESSMENT & DISPOSITION *******
Recommended Assmt: $ /S0 ' References: 7J. 0Y0r) � (a ✓ Criteria: a Z3 �r'C
Report Rcvd: / / Assessed: $
Payment Received: $
# Of Violators:
REVISED: 12/92
On:
Total Assessment: $
To AG: / / To Violator:
Case Closed: / /
Total Received: $

NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
NCDENR January 11, 2000
Mr. Robert D. Darden, Jr. zV`1�
JAMES B. HUNT JR. The Harris Law Firm, PLLC i
GOVERNOR Post Office Box 712
Morehead City, North Carolina 28557
BILL HOLMAN Re: Pine Knoll Association
SECRETARY
Dear Bob:
I apologize for the delay in responding to your letter of
November 9, 1999. Once the letter found its way to me, it took
some time to get background information from the Division of
Coastal Management (DCM) and the Attorney General's Office.
My understanding from Mr. Tyndall is that DCM issued a
notice of violation to Mr. Cardon for construction of the dock early
last year on the assumption that the development was unpermitted.
Mr. Cardon's attorney, Claud R. Wheatly, Jr., then provided DCM
with a copy of a 1995 survey indicating that the dock existed in its
current dimensions at that time and the 1999 construction actually
involved repair of an existing structure. Ms. Merrie Jo Alcoke in the
Attorney General's Office also confirmed that Mr. Cardon was
engaged in litigation with Pine Knoll Association in the mid -1990's
related to this same dock.
Under CAMA rules, repairs are exempt from CAMA permit
requirements, but replacement is treated like new development for
permitting purposes. After determining that the 1999 construction
involved an existing structure, Mr. Tyndall investigated further to
determine whether the work was so substantial as to constitute
replacement rather than repair. Mr. Tyndall found that the cost of
the 1999 construction did not exceed 50% of the value of the
structure; as a result, the work would be considered exempt from
CAMA permit requirements. (See T1 5A NCAC 7J .0210.) Since
the 1999 construction did not require a CAMA permit, DCM
proposes to withdraw the notice of violation against Mr. Cardon.
F ; 7 040
1601 MAIL SERVICE CENTER, RALEIGH, NORTH CAROLINA 27699-1601
PHONE [phone] FAX [phone] WWW.ENR.STATE.NC.US/ENR/
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Re: Pine Knoll Association
Page 2
Ms. Alcoke's research into the earlier litigation between Mr.
Cardon and Pine Knoll Association found that the case culminated
in a Court of Appeals decision, Pine Knoll Association, Inc. v.
Marvin G. Cardon (No. COA96-347), that upheld summary
judgment for Mr. Cardon on issues of trespass and violation of
subdivision restrictive covenants, but remanded to the superior
court for further proceedings on the issue of interference with the.
Association's riparian rights. It does not appear, however, that the
parties pursued the matter in superior court to a final ruling on the
riparian rights issue.
Based on the information that the Division has, there does not
appear to be any further action for the Department to take. I hope
this additional information is helpful to you. Please call if I can be of
further assistance.
Sincerely,
Robin W. Smith
Assistant Secretary for
Environmental Protection
cc: Merne Jo Alcoke
Ted Tyndall

NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NAT�(jU�RAJIRESOURCES
� DIYISiON OF COASTAL MANAGEMENT
w �
NCDENR January 27, 2000
Mr. Robert D. Darden, Jr. ��
The Harris Law Firm. PLLC
JAMES S. HUNT JR... FEBO
GOVERNOR PO BOX 712 r [_D .2000
Morehead City, NC 28557 COASTAL MANAGEMENT
WAYNEMCDEVITT Dear Mr. Darden:
SECRETARY
Secretary Holman received your second letter of January 5, 2000, about the time that
Robin Smith was responding to your original letter of November 9, 1999. Sec.
DONNA o.. MOFFITT Holman asked that I reply to your Jan. 5 letter. I trust you have received Ms. Smith's
DIRECTOR letter by now and it will serve as the official response from the Department of
Environment and Natural Resources.
In fairness to this Division, I hope you will notify- your clients that we do not have
the authority to adjudicate issues of trespass, violation of subdivision restrictive
covenants, or interference with riparian properry rights through the CAMA
regulatory process. If, as stated in your letter, your clients' are appealing the Court
of Appeals decisiRn or if they -are pursuing the riparian rights matter in superior
court, then perhaps the results will be more satisfactory to them.
Additionally, both Mr. Carter and I tried to explain to your clients the limits on the
staff under CAMA authority to deal with this matter in the way your clients wanted.
It is unfortunate that they want to accuse us of being ineffective when in fact we are
limited by state law in the options we have to apply to this case.
Thank you for your inquiry to Sec. Holman and I hope you will keep us informed of
the outcome of any court action.
Sincerely,
Donna D. Moffitt
D G�
cc: Sec. Bill Holman
Robin Smith
Charles Jones
Ted Tyndall
Jimmy Carter
1638 MAIL SERVICE CENTER, RALEIGH, NC 27699-1638
2728 CAPITAL BLVD., RALEIGH, NC 27604
PHONE [phone] FAX [phone]
AN EQUAL OPPORTUNITY / AFFIRMATIVE ACTION EMPLOYER - SOq RECYCLED/10% POST -CONSUMER PAPER

J Jct STA7t. w
Bill Holman
Secretary,Q Department of Environment and Natural Resources
T0: DATE: 902119
RESPOND BY S4A
PLEASE:_. epare a reply for my signature and return to me:
Reply, noting the letter was. referred to you by me
(copy to Secretarys Office).
Prepare a reply for the Governor's signature and return to me.: `
Reply, noting the -letter was referred to you by Govenor Hunt
(with a copy to the Secretary's office)
For your information
Take appropriate action.
Note and file.
Note and return to me. -
Note and see me about this:
Your comments and/or recommendations.
REMARKS:
o
eFWA
'�% North Carolina Department of Environment and Natural Resources
NCDENR 1601 Mail Service Center, Raleigh, NC 27699-1601 / voice: 919 715-4102 / Fax [phone]
_�

THE HARRIS LAW FIRM, PLLC - I
304 North 35th Street
Post Office Box 712
Morehead City, North Carolina 28557
John M. Harris* [phone]
R. Andrew Harris j [phone](facsimile)
Robert D. Darden, Jr., Of Counsel j email:[e-mail]
A _
(Residential) Specialist j
*Board Certified Real Estate SP I r-- " - - S
..--- iJ//J 11
January 5, /2fd00
Honorable William A. Holman, Secretary
Department of Environment, Health and Natural Resources
1601 Mail Service Center
Raleigh, N.C. 27699
Dear Mr. Secretary:
I invite your attention to a letter addressed by me, on
behalf of my client, the Pine Knoll Association, dated
November 9, 1999. A copy is enclosed.
No answer has been received at this date.
We would be grateful for an indication as to whether a
response might be expected, and if so, when.
Thank you.
Sincerely yours,
R. D. Darden, Jr.
Enclosure
cc: Pine Knoll Association, Inc.
Robin Smith, DENR
Charles Jones, CAMA
SCEIV'
JAN 2 4 MU
COASTAL MANAGEMENT

THE HARRIS LAIN FIRM, PLLC
304 North 35<i, Street
Post Office Box 712
Morehead City_ , North Carolina 28557
John M.Harris* [phone]
R. Andrew Harris [phone](facsimile)
Robert D. Darden, Jr., UfCouns& email:[e-mail]
kBoal'd Certified Real Estate Specialist (Residential)
November 9, 1999
Honorable William A. Holman, Secretary
Department oi: Environmental and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699
Dear Mr. Secretary:
We represent the Pine Knoll Association, a non-profit corporation having as its members
property owners in the subdivision known as Pine Knoll Shores Extension in the Town of Pine
Knoll Shorts, Carteret County.
A property oviner and mornber of the corporation named Marvin Cardon owns property adjacent
to a dedicated parr, :tiicl launching ramp owned and controlled by the Association. Mr. Cardon
applied for a CA\,lA permit to rebuild a clock 6 ft. by 20 ft. parallel to his seawall, consistent
with dock restrictions in the constituent documents for the subdivision. In their "ADJACENT
RIPARIAN PROPERTY OWNER STATEMENT", officers of the Association assented to the
permit but carefully indicated that the Association did not waive the fifteen foot riparian set-
back.
The dock as permitted ,,vas re -built. However, Mr. Cardon proceeded to further extend his dock
to the property corner, rounding the corner and continuing approximately ten feet along the
property line of our clients, thus restricting the use of the park area by all of his fellow members
of the Association. (There was also a problem of extension of a concrete launching ramp some
six feet, the extension being wholly on the property of the Association.) A NOTICE OF
VIOLATION 999-07C was issued and served on Mr. Cardon in February of this year.
The dock extension continues in place. There have been numerous calls by our clients to the
local office of the Division of Coastal Management, as well as to Ms. Donna Moffitt and to Mr.
Jimmy Carter. No action ensued. I then called Mr. Tyndall at Morehead, in the hope that I could
forestall involvement at the cabinet level only to learn that the Division did not intend to enforce
the rules in this case.
According to lblr. Tyndall, the NOTICE OF VIOLATION was slated to be rescinded. Mr.
Tyndall had been shown a plat dated in 1995 which showed the encroaching dock in place at that
time_ and N -1r. T ymdalt concluded that it must have been lawful then, and could thus be replaced

along our bulkhead now. I asked Mr. Tyndall if counsel for the Division agreed with this
assumption, which seems to us to be a syllogism, and he said he would seek advice. We do not
have an answer at this time.
Tyndall also referred to litigation between the Association and Mr. Cardon, and seemed to be of
the impression that the litigation "legitimatized" Mr. Cardon's encroachment. The State of
North Carolina was not a party to the litigation, the riparian rights issue was dropped from the
case, and the case is on appeal. I find it difficult to believe that the Division of Coastal
Management, in the exercise of its enforcement powers, would be rendered powerless by any
result of a private lawsuit, especially when it is not a party.
My clients also are puzzled by an explanation they received from a person having management
authority, to the effect that nothing could be done because of a "personality conflict" between
Mr. Tyndall and Mr. Cardon.
We would be most grateful if the Secretary could personally assist in a resolution of this matter,
which has raised doubts about the effectiveness of the Division in the minds of the hundreds of
families of Pine Knoll Shores who are now denied the frill use of their park. We are prepared tc
meet with any designees of yours to help move the process along.
Sincerely yours.
R. D. Darden, Jr.
CC: Jack Dickerson, PKA
Dick Wray, PKA
Ken Benson, PKA
Robin Smith, DE.HNR
Charles Jones, Division of Coastal Management
F'L'viSOtiiccldocuments'.denise,.PKA-Elolman.doc

along our bulkhead now. I asked Mr. Tyndall if counsel for the Division agreed with this
assumption, which seems to us to be a syllogism, and he said he would seek advice. We do not
have an answer at this time.
Tyndall also referred to litigation between the Association and Mr. Cardon, and seemed to be of
the impression that tl-;e litigation "legitimatized" Mr. Cardon's encroachment. The State of
North Carolina was not a party to the litigation, the riparian rights issue was dropped from the
case, and the case is on appeal. I find it difficult to believe that the Division of Coastal
Management, in the exercise of its enforcement powers, would be rendered powerless by any
result of a private la isuit, especially when it is not a party.
My clients also are puzzled by an explanation they received from a person having management
authority, to the effect that nothing could be done because of a "personality conflict" between
Mr. Tyndall and Mr. Cardon.
We would be most grateful if the Secretary could personally assist in a resolution of this matter,
which has raised doubts about the effectiveness of the Division in the minds of the hundreds of
families of Pine Knoll Shores who are now denied the frill use of their park. We are prepared to
meet with any desibnees of yours to help move the process along.
Sincerely yours.
R. D. Darden, Jr.
CC: Jack Dickerson, PKA
Dick Wray, PKA
Ken Benson, PKA
Robin Smith, DE,HNR
Charles Jones; Division of Coastal Management
f:`.;NiSOtiice'.documenu,denise�.PKA- k Iolman.doc

JAN -27-2000 i i FM NC DIV OF COASTAL "Gi. ;T FP•X NO. i ; --- u
�NV(KUNMnrvI rl�
�IV—�—� January 11, 2000
NWENR
Mr. Robert D. Darden, Jr.
JAMES o. HUNT JR. The Harris Law Firm, PLLC
:;OVER NOR Post Office Sox 712
Morehead City, North Carolina 28557
HILL HOI.MAN Re: Pine Knoll Association
SCCRETA,RY
Dep_r Bob:
I apologize for the delay in responding to your letter of
November 9, 1999. Once the letter found its way to me, it tock
some time to get background inforrnaticn from the Division of
Coastal Management (DCM) and the Attcrney General's Office.
My understanding from Mr. Tyncail is that DCM issuea a
notice of violation to Mr. Cardon for construction of the dock early
last year on the assumption that the deveiop^,,ent was unpermitted.
Mr. Cardon's attorney, Claud R. Wheatly, Jr., t"en provided DCM
with a copy of a 1995 survey indicating :hat the dock existed in its
current dimensions at that time and the 1999 construction act,ally
invcived repair of an existing structure. Ms. Merrie Jo Alcoke in the
Attorney General's Office also confirmed that Mr. Cardon was
engaged in litigation with Pine Knoll Asscciaticn 'n the mid-19g0's
related to this same dock.
Under CAMA rules, repairs are exer'Ipt from CAMA permit
req._lrements, but replacement is treated like neer development for
perr;,itting purposes. After determining that t"e 1999 cons`,uction
I-Ivo'ved an existing structure, Mr. Ty7da' ;-,ves-cated fur..... ,o
determine whether the work was so t a' as to const tate
replacement rather than repair. Mr. Tyndale fc; ; l, that the cost of
;l^le ,c99 construction did not exceed 50% of ;-�e value of the
s:-uct:;re; as a result, the work would be cors;oered exempt from
CAMA permit requirements. (See T 15A NCAC 7J .0210.) S ^ce
the 1999 construction did not require a CAMA permit, DCM
proceses to withdraw ti -ie notice of vio;ation against Mr. Cardon.
I Go M -L SERV CENT. R ElG11, NOATH M1'aUL)N�. 27GP�'1 e�1
pti/iNC ;1I 0.733.1%0 -. FA :C 51 9-7 ; 5-3460 www II •. �1. iY.aTE.'VG us/ENS/
Ati –J+i A.. vMPI: �.':Jni r /•.� l......VE ACYIUN EM.. -�J��. �_
ItE�vGlBn/I O')u "':.71't=UNSur.IE?. PAPG�

JAN -27-2000 THU 02:39 PM NO DIV OF COASTAL MGMNT FAX NO, 2122473350 r, iJ3
Re: Pine Knoll Association
Page 2
Ms. Alcoke's research into the earlier litigation between Mr.
Cardon and Pine Knoll Association found that the case culminated
in a Court of Appeals decision, Pine Knoll Association., Inc, v.
Marvin G. Cardon (No. COA96-347), that upheld summary
judgment for Mr. Cardon on issues of trespass and violation of
subdivision restrictive covenants, but remanded to the superior
court for further proceedings on the issue of interference with the
Association's riparian rights. It does not appear, however, that the
parties pursued the matter in superior court to a final ruling on the
riparian rights issue.
Based on the information that the Division has, there does not
appear to be any further action for the Department is take. I hope
this additional information is helpful to you. Please call if I can be of
further assistance,
Sincerely,
Robin W. Smith
Assistant Secretary for
Environmental Prclection
cc: Merrie Jc Alcoke
Ted Tyndall

jAN-2'!-i%000 'l'HU 0c Fl NU U!V Ur UUH�lHL MUMNI rHx NU. „ ,;-�
Re: Pine Knoll Assoclaticn
Page Z
Ms. Alcoke's research into the earlier litigation between Mr.
Cardon and Pine Knoll Association found that the case culminated
in a Court of Appeals decision, Pine Knoll Association. Inc, v.
Marvin G. Cardon (No. COA96-347), that upheld summary
judgment for Mr. Cardon on issues of trespass and violation of
subdivision restrictive covenants, but remanded to the superior
court for further proceedings on the issue of interference with the
Association's riparian rights. It does not appear, however, that the
parties pursued the matter in superior court to a fina' ruling on the
riparian rights issue.
Based on the°information that the Division has, there does not
appear to be any further action for the Department to take, I hope
this additional information is heipful to you. Please call if I can be of
further assistance.
Sincerely,
Robin W_ Smit"
Assistant Secreta,y for
Environmental Prc'ection
CC" Merrie Jo Alcoke
Ted Tyndall

9
North Carolina
Department of Environment and Natural Resources • • j
Division of Coastal Management
Michael F. Easley, Governor NCDENR
William G. Ross Jr., Secretary
Donna D. Moffitt, Director
May 10, 2001
Mr. Marvin Cardon
2108 Camrose Street
Raleigh, N.C. 27608-1669
RE: CAMA Violation #99-07C
Dear Mr. Cardon:
This letter is in reference to the Notice of Violation sent to you on April 9, 1999, for the
reported unauthorized development at your property located 119 Loblolly Drive, Pine Knoll
Shores, Carteret County. The violation stated that Estuarine Waters, Estuarine Shoreline, and
Public Trust Waters, all Areas of Environmental Concern designated by the Coastal Resources
Commission, Nvere involved. This letter also serves as a follow up to my meeting with your
attorney Mr. Claude R. Wheatley, Jr. and the subsequent information that he provided to this
office. That information, a copy of a 1995 survey, indicated that the dock in question existed in its
current dimensions at that time and that the 1999 construction actually involved repair of an
existing structure and not an addition.
Under CAMA rules, repairs are exempt from CAMA permit requirements, but replacement
is treated like new development for permitting purposes. After reviewing the aforementioned
information along with cost of the repairs and the dock's physical value, the Division of Coastal
Management has determined that the 1999 construction involved an existing structure and that the
cost of the 1999 construction did not exceed 50% of the value of the structure. Therefore, the
work has been considered exempt from CAMA permit requirements (T15A NCAC 7J,0210). And
since the 1999 construction did not require a permit, the Division of Coastal Management hereby
withdraws the notice of violation dated April 9, 1999. Please consider this case closed and no
further action will be taken.
Thank you for your time and cooperation in resolving this matter. If you have any
questions, please do not hesitate to contact me at my Morehead City office, [phone].
Sincerely,
,.Qa
M. Ted Tyndall
District Manager
cc: Charles S. Jones - Assistant Director, DCM
M. Scott Jones - Compliance Coordinator
Morehead City District \ 151-B Hwy. 24, Hestron Plaza Il
Morehead City, North Carolina 28557
Phone: [phone] \ FAX: [phone] \ Internet: http:Hdcm2.enr.state.nc.us
AN EQUAL OPPORTUNITY', AFFMMATIVE ACTION EMPLOYER - 50% RECYCLED / 1096 POST CONSUMER PAPER

Converted WP file 960347-1;rfect file http://www.aoc.state.nc.us/www/public/coa/opinions/1997/960347-1.htm
How to access the above link?
NO. COA96-347
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 1997
PINE KNOLL ASSOCIATION, INC.
Plaintiff
V.
MARVIN G. CARDON
Defendant
Appeal by plaintiff from order entered 16 November 1995 by Judge W. Russell Duke, Jr., in Carteret County
Superior Court. Heard in the Court of Appeals 4 December 1996.
Kirkman & Whitford, P.A., by Neil B. Whitford, for plaintiff-appellant.
Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr., for defendant -appellee.
MARTIN, John C., Judge.
Plaintiff Pine Knoll Shores Association, an owners association for various Pine Knoll Shores subdivision properties
located on the Bogue Banks barrier island, brought this action seeking damages and injunctive relief against defendant
Marvin G. Cardon. Plaintiff alleged that defendant had violated its riparian rights, violated restrictive covenants, and
trespassed upon its property. Defendant answered denying plaintiffs claim and asserting a counterclaim alleging that
plaintiff was in violation of restrictive covenants.
The dispute arises upon the following factual background: Plaintiff and defendant own adjoining canal front
properties on the "dead end" canal of Davis Landing Canal, which is navigable by pleasure boats. Plaintiffs tract of
land, referred to as "Davis
Landing Park," has water frontage along the canal's end. Davis Landing Park and Davis Canal are common property of
plaintiff and its members. Defendant's lot is immediately to the west of Davis Landing Park with a small protrusion of
its boundary located on the western bank of Davis Landing Canal near the southwest corner of the park. A seawall runs
approximately east -west along the park's canal frontage and approximately north -south along defendant's canal
frontage.
The properties within Pine Knoll Shores are subject to a Declaration of Covenants and Restrictions, recorded in
January 1971 in Book 324, Page 418, Carteret County Registry. On 13 June 1981, members of plaintiff purported to
adopt and record an amendment to the restrictive covenants in Book 460, Page 198, Carteret County Registry, which
provides, in pertinent part:
ARTICLE 5
4.... [N]o fence, barricade or obstruction may be erected or placed in extensions of the property lines abutting the
canals and Bogue Sound which would prevent ingress or egress along the waterfront side of said lots to pedestrians or
others lawfully thereon.
Plaintiff maintains a pier which is thirty-five feet in length and three and one-half feet wide, extending southwardly
from the center of Davis Landing Park's canal frontage, and an adjacent ramp to the east of the dock for launching small
boats. Defendant maintains a dock along his 26.1 feet of canal frontage. Defendant moors his two boats, of
p orVximately thirty feet in length, perpendicular to his dock and parallel to plaintiffs sea wall. 12/28/99 4:18 PM

Converted WP file 960347-1 http://www.aoc.state.nc.us/www/public/coa/opinions/1997/960347-1.htm
Plaintiff moved for partial summary judgment on the issue of defendant's interference with its riparian rights; and
defendant moved for summary judgment dismissing plaintiff s action. At the commencement of the summary judgment
hearing, plaintiff sought to voluntarily dismiss its claim for alleged violation of restrictive covenants. The trial court
d�'ed Plaintiffs motion for summary judgment, granted defendant's motion for summary judgment an tsmissed
f s action. amtiff appeals.
The issue on appeal is whether the trial court erred in granting defendant's motion for summary judgment. We affirm
in part, reverse in part, and remand.
In addressing a motion for summary judgment, the trial court is required to view the pleadings, affidavits and
discovery materials available in the light most favorable to the non-moving party to determine whether any genuine
issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. §
IA -1, Rule 56 (1990); Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992). Summary
judgment is proper where the moving party can establish that an essential element of the opposing party's claim does
not exist, or that the opposing party cannot produce evidence to support an essential element. Id. Summary judgment is
an appropriate procedure in a declaratory judgment action. Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697
(1980).
` I.
We first consider plaintiffs claim for re . In order to establish a claim for trespass to real property, plaintiff was
required to forecast evidence of the following elements: (1) possession of the property by the plaintiff when the alleged
trespass was committed; (2) an unauthorized entry by the defendant; and (3) damage to the plaintiff from the trespass.
Lee v. Greene, 114 N.C. App. 580, 442 S.E.2d 547 (1994). The pleadings, affidavits, and answers to interrogatories
before the trial court show that owners of property within Pine Knoll Shores are members of plaintiff Association and
that members have the right to use "common properties" such as Davis Landing Canal and Davis Landing Park.
Likewise, the evidence before the trial court clearly establishes that defendant is a property owner within Pine Knoll
Shores, and therefore is a member of plaintiff Association. Plaintiff did not forecast evidence that defendant, as one of
its members, is not authorized to use the seawall. Thus, the second element of plaintiffs claim, i.e., unauthorized entry
onto plaintiffs seawall, is nonexistent and summary judgment for defendant was proper. Accordingly, the trial court's
order granting summary judgment in favor of defendant with respect to the trespass claim is affirmed.
II.
We next consider plaintiffs claim for interference with its ri��rl�n rights. Plaintiff contends the trial court erred in
granting defendant's motion for summary judgment because there exists a genuine issue of material fact as to whether
defendant, by mooring his boats parallel to plaintiffs seawall, interfered with plaintiffs riparian rights. Defendant
argues that plaintiff did not retain riparian rights to the Davis Landing Park. Therefore, we must first determine whether
each party owns riparian land, and if so, what is the extent of each party's riparian rights.
Riparian rights are vested property rights that arise out of ownership of land bounded or traversed by navigable
water. In re Protest of Mason, 78 N.C. App. 16, 337 S.E.2d 99 (1985), disc. review denied, 315 N.C. 588, 341 S.E.2d
27 (1986). A riparian owner has "a qualified property in the water frontage belonging, by nature, to their land, the chief
advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of
their waterfronts to navigable water, and the right to construct wharfs, piers, or landings . . . . " Bond v. Wool, 107 N.C.
139, 148, 12 S.E. 281, 284 (1890).
Both plaintiff and defendant admit that lot one and Davis Landing Park are bounded by a navigable waterway, Davis
Landing Canal. The record indicates that the Roosevelts owned property known as "Pine Knoll Shores Extension," and
were the common source of title to defendant's lot one and plaintiffs Davis Landing Park. Plaintiff offered a deed,
granted by the Roosevelts, dated 23 March 1977 recorded in Book 396, Page 43, Carteret County Registry conveying
"all of the right, title and interest" to various common facilities including "Davis Landing and the land area underlying,
and the Park adjacent thereto." Defendant offered many deeds showing that he acquired title by direct chain from the
Roosevelts. Defendant was granted a deed in July of 1989 recorded in Book 614, Page 196, Carteret County Registry,
conveying lot 1 with "all privileges and appurtenances thereto belonging to the Grantee in f ple." T erefore an
such title that Roosevelts had, includin ri arian rights, ass and vested in
PI
an efendant.
ccordingly, the record indicates that both plaints an e endant are owners o an with n anan rig ts.
The next issue is whether the trial court correctly determined the extent of the parties' riparian rights. In Bond v.
ro-n?, 107 N.C. 139, 12 S.E. 281 (1890), our Supreme court defined riparian rights where the boundary 1'Tf8'99 4:18 PM

Converted WP file 960347-1y perpendicular to the shoreline antittO://www.ao6.§tate.ne.us/www/public[coa/opinions/1997/960347-1.htm
extending straight lines of the sidelines of the lands into the water. In O'Neal v. Rollinson, 212 N.C. 83, 192 S.E.2d 688
(1937), the court held that where the shore line is substantially straight, the riparian rights of adjoining landowners
along a navigable stream are to be determined, not by extending the side property lines in a straight line to the channel,
but by drawing lines from the end of the side property lines perpendicular to the shore line to the channel. Similarly,
this Court in In re Protest of Mason, 78 N.C. App. 16, 337 S.E.2d 99 (1985), disc. review denied, 315 N.C. 588, 341
S.E.2d 27 (1986), held that the zone of riparian access is determined by drawing a line along the channel in front of the
properties, then drawing a line perpendicular to the line of the channel so that it intersects with the shore at the point the
upland property line meets the water's edge. The general rules for apportionment of riparian rights that our Supreme
Court has fashioned cannot be strictly applied in the present case because irregular shore lines are involved, and if
applied, defendant and plaintiff would not be treated equitably. In determining riparian rights where the shoreline is
angled, as it is in this case, some jurisdictions have used the "angle bisection formula," see Randall v. Ganz, 537 P.2d
65 (1975), other jurisdictions have used the "reasonable use" delineation. See Heston v. Ousler, 398 A.2d 536 (1979).
In the absence of any controlling authority concerning the issue of proper allocation of water space between abutting
riparian
iparian owners where the configuration of the shoreline is essentially a right angle, as here, we believe the "reasonable
use" test to be the most equitable method to determine the owner's rights. In applying the "reasonable use" test, the
owners' use of the waters adjacent to their property is governed by "a rule of reasonableness, an must be restricted so
as not to interfere with the correlative rights of other littoral owners." Heston, 398 A. 2d at 538. North Carolina has
recognized the doctrine of "reasonable use" where water passes through the property. See Durham v. Cotton Mills, 141
N.C. 615, 54 S.E. 453 (1906). HowevUs
i
f whether or not a use of water is a "reasonable use" in view of
the rights of other riparian owners is aestioId. (whether the upper riparian proprietor is engaged in a
reasonable exercise of his right to use ream a question for the jury); see also 65 C.J.S. Navigable Waters § 66
(1966). $cause the question of "reasonable use" is material to a determination of the controversy, we conclude that
summary judgment was inappropriate on t e riparian rig is issue.
III.
3
Plaintiff contends the trial court erred in granting defendant's summary judgment on the issue of whether
defendant violated the restrictive covenants. The issue, however, moot. its complaint, plaintiff alleged that
defendant violated the restrictive covenants by mooring his boats to plaintiffs sea wall. Defendant
counterclaimed alleging plaintiff violated the restrictive covenants by erecting its pier. At the summary judgment
hearing, plaintiff submitted to a voluntary dismissal as to its claim alleging defendant's violation of the restrictive
covenants. Once a party voluntarily dismisses its action pursuant to N.C. Gen. Stat. § IA- 1, Rule 41(a)(1) (1990), "it
[is] as if the suit had never been filed." Tompkins v. Log Systems, Inc., 96 N.C. App. 333, 335, 385 S.E.2d 545, 547
(1989), disc. review denied, 326 N.C. 366, 389 S.E.2d 819 (1990). The trial court granted defendant's motion for
summary judgment, dismissing plaintiffs case, but did not grant defendant any injunctive relief as to his counterclaim
alleging plaintiffs violation of the restrictive covenants. Therefore, because plaintiff voluntarily dismissed its claim for
defendant's alleged violation of restrictive covenants, and the trial court granted defendant no relief upon his
counterclaim, plaintiff ment umud mnvodnanhedh
violations is
455 S.E.2d 470 (1
it. See Doe v. Du e niv., 118 N.C. App. 406,
E
conclusion, summary judgment in favor of defendant is affirmed as to plaintiff s trespass and restrictive covenant
m; otherwise summary judgment is reversed and the cause remanded for further proceedings to determine the extent
e parties' riparian rights consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Judges GREENE and WYNN concur.
**** End of Document *0**
Converted from WordPerfect
3 of 3
12/28/99 4:18 PM
_J

MICHAEL F. EASLEY
ATTORNEY GENERAL
MEMORANDUM
State of North Carolina
Department of Justice
P. O. BOX 629
RALEIGH
27602-0629
TO: Ted Tyndall, Morehead City District Manager
FROM: Merrie Jo Alcoke, Associate Attorney General
DATE: December 28, 1999
RE: Pine Knoll Association, Inc. v. Marvin G. Cardon
REPLY TO:
Environmental Division
[e-mail]
Telephone: [phone]
Fax: [phone]
J� 1999
I am writing to provide information you requested regarding the final disposition of Pine Knoll
Association, Inc. v. Marvin G. Cardon. This case touches on the same controversies between
riparian owners in Pine Knoll Shores that are apparently still at issue.
Defendant Cardon won on summary judgment in Carteret County Superior Court. The plaintiff,
Pine Knoll Association, appealed to the Court of Appeals. That Court affirmed summary
judgment in favor of defendant Cardon in part (as to the trespass and restrictive covenant claims)
and reversed and remanded on the riparian rights claim. This does not mean that the defendant
"lost" the riparian rights claim; it means that there were issues of fact which needed to be
determined. I have enclosed a copy of the Court of Appeals opinion which states that the
"reasonable use" test is the proper test to be applied in order to determine a riparian owner's
rights in this particular situation. When a case is "remanded for further proceedings," it usually
goes back to the court which first heard it. I spoke with the Carteret County Superior Court
Clerk's Office, and they had no record that the case came back to them for disposition of the
riparian rights issue. The Clerk's Office stated that the last item in the file was an order
indicating that the N.C. Supreme Court denied a Petition for Discretionary Review. This could
mean a few different things, including that they settled the case, or that it just fizzled out. The
best way to find out is to speak to the attorneys involved. I called C.R. Wheatly, Jr. (who
represents Mr. Cardon) to inquire, but their office is closed until after the new year. I did not
want to set off any alarms, so I did not call the Association's attorney, Neil Whitford.
I do not think that this information has any bearing on your previous evaluation of the situation,
which I am in agreement with, and which I will gladly discuss with you again.
�:

NO. COA 96-347
NORTH CAROLINA COURT OF APPEALS
******************
PINE KNOLL ASSOCIATION, INC. )
Plaintiff t
THREE B DISTRICT
From Carteret County
94 -CVS -838
V. )
MARVIN G. CARDON )
)
Defendant )
****************************
DEFENDANT/APPELLEE'S BRIEF
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l
TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . .
ADDITIONAL QUESTIONS PRESENTED . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . 3
ARGUMENT:
PLAINTIFF'S I.
WAS PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE
OF DEFENDANT'S VIOLTION OR INTER-FERENCE WITH PLAINTIFF'S
RIPARIAN RIGHTS IN A WATERWAY AND DID THE TRIAL COURT
COMMIT REVERSIBLE ERROR IN DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT ON THIS ISSUE? . . . . . . . . . . . . 6
PLAINTIFF'S II.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT THUS
ESTABLISHING THAT DEFENDANT WAS NOT VIOLATING OR
INTERFERING WITH PLAINTIFF'S RIPARIAN RIGHTS? . . . . . 6
DEFENDANT'S I.
ARE RESTRICTIVE COVENANTS DATED JANUARY 1, 1971, SIGNED
JANUARY 29, 1971, RECORDED FEBRUARY 4, 1971, WHICH STATE
THAT THE PROPERTY SUBJECT TO SAID COVENANTS IS "PER MAP
OF C. C. KING", WHICH MAP WAS NOT MADE UNTIL MAY 10, 1971
AND RECORDED JUNE 15, 1971, VALID? . . . . . . . . . . . 6
DEFENDANT'S II.
ASSUMING THE VALIDITY- OF SAID COVENANTS, WERE SAID
COVENANTS LEGALLY EFFECTIVE WHEN THIS ACTION WAS BROUGHT
SEPTEMBER 15, 1994, WHEN SAID COVENANTS BY THEIR TERMS
PROVIDED "THESE COVENANTS . . . SHALL BIND AND ENURE TO
THE BENEFIT OF THE PURCHASERS . . . UNTIL JANUARY 1,
1982, AFTER WHICH TIME SAID COVENANTS SHALL BE
AUTOMATICALLY EXTENDED FOR A PERIOD OF 10 YEARS
"�
. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PLAINTIFF'S III.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN A
FASHION THAT POSSIBLY SERVES AS A JUDGMENT ON THE ISSUE
OF WHETHER DEFENDANT WAS VIOLATING RESTRICTIVE COVENANTS
WHEN PLAINTIFF VOLUNTARILY DISMISSED VIOLATION OF
RESTRICTIVE COVENANTS AS A CAUSE OF ACTION . . . . . . . 12

ii
PLAINTIFF'S IV.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING SUMMARY JUDGMENT TO DEFENDANT AND DISMISSING
PLAINTIFF'S ENTIRE CASE INCLUDING PLAINTIFF'S CAUSE OF
ACTION FOR TRESPASS, WHEN THE PLEADINGS, AFFIDAVITS OF
THE PARTIES AND SUPPORTING DOCUMENTS AND DISCOVERY,
ESTABLISH A MATERIAL AND GENUINE ISSUE OF FACT ON THAT ,
13
DEFENDANT'S III.
IS THE DEFENDANT A RIPARIAN OWNER AND ENTITLED TO USE THE
RIPARIAN AREA INCIDENTAL TO THIS LOT? . . . . . . . . . 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 17
a

iii
TABLE OF CASES AND AUTHORITIES
A E
PAGE
Allen v. Seagate, 119 NC App. 761 (1995) . . . . . . . .
. . . 8
Board of Transportation Y. Pelletier, 38 NC App 533,
248 S.E.2d 413 (1978) . . . . . . . . . . . . . . .
. . 15
Bond v. Wool, 107 NC 139 . . . . . . . . . . . . . . . .
. 10-12
Capunev. Robbins, 273 NC 581 . . . . . . . . . . . . . .
. . 11
Danielson v. Cummings, 300 NC 175 . . . . . . . . . . . .
. . 13
Gaither v. Hospital, 235 NC 431 . . . . . . . . . . . . .
. . 10
Grimes v. Guion, 220 NC 676 . . . . . . . . . . . . . . .
. . . 9
Hayes v. Richard, 245 NC 687, 97 S.E.2d 105 (1957) . . .
. . 15
Hill v. Pine Lawn, 304 NC 159 . . . . . . . . . . . . . .
. . . 9
In the Matter of the Protest of Clyde Mason, Jr.,
78 NC App. 17 . . . . . . . . . . . . . . . . . . .
11, 12
Jones v. Turlington, 243 NC 681 . . . . . . . . . . . . .
. . 12
Lona v. Branham, 271 NC 264 (1967) . . . . . . . . . . .
. . . 8
McCarley v. McCarlex, 24 NC App. 373, 210 S.E.2d 531
( 1975 ) . . . . . . . . . . . . . . . . . . . . . . .
. . 13
O'Neal v. Rollinson, 212 NC 83 (1937) . . . . . . . . . .
10, 12
Sansom v. Warren 215 NC 432 (1939) . . . . . . . . . . .
. . . 9
Shepard's Point Land Company v. Atlantic Hotel, 132 NC 517
( 1903 ) . . . . . . . . . . . . . . . . . . . . . . .
. . 11
Swyaert v. Swvgert, 46 NC App. 173, 264 S.E.2d 902 (1980)
. . 13
STATUTES
N.C.G.S. Chapter 47, Article 2 . . . . . . . . . . . . . . . . 9

ADDITIONAL QUESTIONS PRESENTED
I. ARE RESTRICTIVE COVENANTS DATED JANUARY 1, 1971, SIGNED
JANUARY 29, 1971, RECORDED FEBRUARY 4, 1971, WHICH STATE
THAT THE PROPERTY SUBJECT TO SAID COVENANTS IS "PER MAP
OF C. C. KING", WHICH MAP WAS NOT MADE UNTIL MAY 10, 1971
AND RECORDED JUNE 15, 1971, VALID?
II. ASSUMING THE VALIDITY OF SAID COVENANTS, WERE SAID
COVENANTS LEGALLY EFFECTIVE WHEN THIS ACTION WAS BROUGHT
SEPTEMBER 15, 1994, WHEN SAID COVENANTS BY THEIR TERMS
PROVIDED "THESE COVENANTS . . . SHALL BIND AND ENURE TO
THE BENEFIT OF THE PURCHASERS . . . UNTIL JANUARY 1,
1982, AFTER WHICH TIME SAID COVENANTS SHALL BE
AUTOMATICALLY EXTENDED FOR A PERIOD OF 10 YEARS . . ."?
III. IS THE DEFENDANT A RIPARIAN OWNER AND ENTITLED TO USE THE
RIPARIAN AREA INCIDENTAL TO HIS LOT?

2
STATEMENT OF THE CASE
On September 15, 1994, Pine Knoll Association, Inc., the
Plaintiff, filed a complaint'alieging that the Defendant, Marvin G.
Cardon, owner of property in the subdivision of Pine Knoll Shores r
Extension, violated restrictive covenants recorded in Book 324,
page 418, as amended in Book 460, page 198, Carteret County
Registry, by blocking the access to a canal of members of said
Association, and that Plaintiff is entitled to injunction to
restrain the Defendant's action and also Plaintiff is entitled to
institute a fine in the amount of $10,000 for Defendant's disregard
of the covenants.
Plaintiff also filed a second cause of action contending that
Defendant's acts constitute a trespass and that the Plaintiff has
sustained damages in the amount of $10,000. Defendant in his
answer admitted the ownership of the lot that he owns, denied that
the covenants were in effect, alleged in the alternative by
counterclaim that if the covenants were effective, that Plaintiff
had violated the covenants by creating an obstacle in the canal by
building a dock and asked that the Court require the removal of the
said dock as an alternative claim if the covenants are found lawful
and in existence.
The Plaintiff amended the Complaint contending the Plaintiff
was vested with riparian rights by virtue of its ownership of Davis
Landing Park and that Defendant's use of the said area violated the
riparian rights of Plaintiff Answer was filed by Defendant to the

3
amendment of the Complaint denying that Plaintiff had said riparian
rights.
The Plaintiff filed Motion for Summary Judgment on the basis
that there is no geniune issue as to any material fact and the
Defendant moved for summary judgment on behalf of the Defendant on
the ground that there is no geniune issue as to any material fact.
Defendant further moved for judgment against the Plaintiff as a
matter of law dismissing the Plaintiff's action. At the hearing
Plaintiff attempted to voluntarily to effect a dismissal to its
claim relating to the restrictive covenants and was opposed by the
Defendant on the ground that a pending counterclaim as well as the
covenants were interlocked with other causes of action by
Plaintiff's allegations.
The Court entered judgment of summary judgment in favor of
Defendant.
STATEMENT OF THE FACTS
Cornelius Roosevelt and his brothers and sisters acquired a
tract of land on Bogue Banks, which is now known generally as Pine
Knoll Shores. Bogue Banks is an island with the Atlantic Ocean on
the south and a sound on the north. The Roosevelts set up their
tract in sections and on the 4th of February, 1971, caused a
document to be recorded, which is dated January 1, 1971, and is
entitled "Amendment to Declaration of Covenants and Restrictions,
Roosevelt Property, Part of Section 4 and Section 5, Pine Knoll
Shores Extension as per map of C. C. King". This document,
Plaintiff's Exhibit 3, appears of record at R p. 38.

F11
This document provides that the particular property subject to
these residential restrictions is "part of Section 4 and Section 5,
Pine Knoll Shores Extension, as per map of C. C. King . . .". The
map of C. C. King is Plaintiff's Exhibit 2 and is the same that
appears on record at R p. 37. This map was not made until May 10,
1971, and was recorded June 15, 1971, five months and ten days
after the declaration of covenants was created and over a month and
a half after restrictive covenants were recorded.
Said declaration provided "the owners have created an agency
which they have delegated to sign the powers of maintaining and
administering community properties and facilities," that agency
being Pine Knoll Associates, Inc., of record at R p. 39.
As to property rights in common properties, the document
provided: "Section 2. The tract owners may retain the legal title
to the common properties until such time as they have completed the
improvements thereon and at such time as, in the opinion of the
tract owners, the association is able to maintain the same."
Article 5 of said covenants, R p. 43, provides: "Restrictive
covenants and easements pertaining to part of Section 4 and Section
5. These covenants, restrictions and easements shall run with the
land and shall bind and enure to the benefit of the purchasers,
their respective heirs, personal representatives, successors and
assigns, until January 1, 1982, after which time said covenants
shall be automatically extended for a period of ten years unless a
majority of the then owners of the land shall sign and record an

5
agreement to change said covenants in whole or in part." The
covenants for the above term terminated February 1, 1992.
On the 4th day of April 1972, the Roosevelt family conveyed to
Robert F. Youngblood, et ux, for a valuable consideration, Lot 1,
Block RR, Section 5, pursuant to map in Map Book 8, page 48, and
specifically set forth in said deed "together with all riparian and
littoral rights incident and attached thereto, all in accordance
with map and plat of Charles C. King . . .", deed of record in Book
335, page 332, Carteret County Registry, and recorded on 13 April
1972. By mesne conveyances, Lot 1, Block RR, was conveyed to
Marvin Cardon, by deed of record in Book 516, page 118, Carteret
County Registry.
The Roosevelts, subdividers and sellers, created a canal which
courses through its subdivision and is named on said map as "Pine
Knoll Waterway". A tributary of this canal heads at that area on
said map marked "Park", down below in the middle of the canal are
the words "Davis Landing". At this point the canal widens. The
Defendant's Lot 1 abuts "Park" and the lateral lines of said lot
intersect the western bank of said canal. The canal is a navigable
body of water and has been so treated by all parties, especially
Seller who had specifically added to the deed the provision
"together with all riparian and littoral rights .".
On or about 23 March 1977, the Roosevelts, by deed, conveyed
to Pine Knoll Association, Incorporated, without consideration,
"all_of the right, title and interest of the parties of the first
part, which they have retained, in and to the following described

park or recreational areas" designated as "Common Facilities" in
Pine Knoll Shores, that is to say: (4) "Davis Landing and the land
area underlying and the park adjacent thereto." Said deed being of
record in Book 396, page 43, Carteret County Registry, and recorded
on 29 March, 1977.
Lot 1, the park, and the canal are shown on the portion of the
said subdivision map. The Plaintiff has constructed, approximately
in the center of the canal projected southwardly from its southern
boundary, a dock. Immediately to the east of this is a launching
ramp for small boats. The Defendant has placed in that riparian
area between the lateral lines of his lot extended eastwardly
toward the center of the canal, two of his boats. The two boats
are generally parallel with the southern boundary of the said park
area. The boats are approximately 30' in length and project 30'
from the highwater mark of Defendant's lot eastwardly.
ARGUMENT
PLAINTIFF'S I. WAS PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON
THE ISSUE OF DEFENDANT'S VIOLTION OR INTER-
FERENCE WITH PLAINTIFF'S RIPARIAN RIGHTS IN A
WATERWAY AND DID THE TRIAL COURT COMMIT
REVERSIBLE ERROR IN DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT ON THIS ISSUE?
PLAINTIFF'S II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT THUS ESTABLISHING THAT
DEFENDANT WAS NOT VIOLATING OR INTERFERING
WITH PLAINTIFF'S RIPARIAN RIGHTS?
DEFENDANT'S I. ARE RESTRICTIVE COVENANTS DATED JANUARY 11
1971, SIGNED JANUARY 29, 1971, RECORDED
FEBRUARY 4, 1971, WHICH STATE THAT THE
PROPERTY SUBJECT TO SAID COVENANTS IS "PER MAP
OF C. C. KING", WHICH MAP WAS NOT MADE UNTIL
MAY 10, 1971 AND RECORDED JUNE 15, 1971,
VALID?

VA
DEFENDANT'S II. ASSUMING THE VALIDITY OF SAID COVENANTS, WERE
SAID COVENANTS LEGALLY EFFECTIVE WHEN THIS
ACTION WAS BROUGHT SEPTEMBER 15, 1994, WHEN
SAID COVENANTS BY THEIR TERMS PROVIDED "THESE
COVENANTS . . . SHALL BIND AND ENURE TO THE
BENEFIT OF THE PURCHASERS UNTIL
JANUARY 1, 1982, AFTER WHICH TIME SAID
COVENANTS SHALL BE AUTOMATICALLY EXTENDED FOR
A PERIOD OF 10 YEARS . . ."?
The land that is disclosed by Plaintiff's Exhibit 2, R p. 37,
was owned by the Roosevelt family, and the canal, as shown by said
map that coursed through the area and emptied into Bogue Sound was
artifically created as shown by the map. There is no question that
the land and the canal previously belonged to the Roosevelts and
they had the right to sell lots from same as they saw fit. Title
examination of the land in question disclosed a deed to the
Roosevelts, restrictive covenants, Plaintiff's Exhibit 3, R p. 38,
dated January 1, 1971 and recorded February 4, 1971, map of
Sections 4 and 5, Pine Knoll Shores, made by C. C. King dated May
10, 1971, recorded June 15, 1971, deed from Roosevelts to
Youngblood dated 4,April 1972, Plaintiff's Exhibit 6, R p. 50, and
the various deeds to the Defendant commencing with Youngblood and
terminating with the Cardon deed 30 July 1989, Plaintiff's Exhibit
13, R p. 67, deed from Roosevelt to Pine Knoll Association, Inc.
for "Davis Landing", Plaintiff's Exhibit 5, R p. 47. These
documents were introduced by the Plaintiff, not in the above order,
nor are they contained in the record in the above order but in the
order the Plaintiff would like for them to have been.
Restrictive covenants referred to a map of C. C. King as if
said map was in existence. Perhaps there was a map in existence;

M
however, it was not introduced by the Plaintiff, nor does it appear
of record. The map that Plaintiff contends is referred to by the
restrictive covenants and is of record is dated some five months
and 10 days after the date of the covenants.
In hong v. Branham, 271 NC 264 (1967), the Court stated:
" . . . such restrictions will not be aided or extended by
implication or in large by construction to affect lands
not specifically described or to grant rights to persons
in whose favor it is not clearly shown such restrictions
are to apply. Doubt will be resolved in favor of the
unrestricted use of property .".
The covenants provide at R p. 43, Article 5, that they shall
exist and be binding "until January 1, 1982, after which time said
covenants shall be automatically extended for a period of 10 years
unless a majority of the owners of the land shall sign and record
an agreement to change said covenants in whole or in part". Do
these covenants exist after January 1, 1992? This Court, in Allen
v. Seagate, 119 NC App. 761 (1995), says "no".
Plaintiff's questions I and II, like Plaintiff's Complaint,
assume that Plaintiff has riparian rights and that the Defendant
y
has none and that Defendant's boats constitute a trespass on
Plaintiff's riparian rights. The situation presented, especially
as it relates to riparian rights, is unique. Firstly, this is not
a natural waterway. It is created by the owners and they are
attempting to handle it as they see fit. The restrictive covenants
specifically state that the owners retain the legal title to all of
the common property until such time as, in their opinion, the
association is able to maintain same. The map is recorded, yet
title is still vested in the subdividers of all so-called "common

9
properties". The Roosevelts made a deed for the land that became
the property of the Defendant and provided in said deed "together
with all riparian and littoral rights incident and attached
thereto, all in accordance with the map and plat of Charles C. King
. .". This deed was made the 4th of April 1972. Five years
later on March 23, 1977, the Roosevelts by deed conveyed to the
homeowners association that they had created, without
consideration, Davis Landing and specifically added to the
description "all the right, title and interest of the parties of
the first part which they have retained in and to the following
described park or recreational areas . . ." (R p. 47).
The Defendant relied upon title search when he bought said Lot
1 and had a right to rely on this conveyance for Lot 1 with the
riparian rights. N.C.G.S. Chapter 47, Article 2 enables purchasers
to rely with safety upon examination of the records and act upon
the assurance that as against all persons claiming under the
"donor, bargainor, or lessor" what did not appear, did not exist.
Grimes v. Guion, 220 NC 676; Hill v. Pine Lawn, 304 NC 159. The
deed to the Roosevelts alter ego, the Plaintiff homeowner's
association, specifically provides that the Roosevelts are
conveying "all of the right; title and interest of the parties of
the first part which they have retained". Nothing appears in the
deed to the Defendant's ancestor in title showing that any portion
of the riparian area was retained and neither is the Plaintiff a
"bona fide purchaser for value". Sansom v. Warren 215 NC 432
(1939).

e,
NCDENR
JAMES B. HUNTJR.
GOVERNOR
WAYNE MGDEVITT
SECRETARY
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Marvin Cardon
2108 Camrose St.
Raleigh, NC 27608-1669
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF COASTAL MANAGEMENT
February 8, 1999
RE: NOTICE OF VIOLATION(s) AND REQUEST TO CEASE UNAUTHORIZED
DEVELOPMENT
CAMA VIOLATION #99-07C
Dear Mr. Cardon:
DONNA D. MOFFITT This letter confirms that on February 5, 1999, I was on your property at 119 Loblolly
DIRECTOR
Drive, adjacent a manmade canal off Bogue Sound, in Pine Knoll Shores, Carteret County.
It also confirms a joint site visit with Mr. Roy Brownlow, Pine Knoll Shores Building
Inspector and CAMA Local Permit Officer, on February 1, 1999, without your attendance..
Information I have gathered for the N. C. Division of Coastal Management shows that you
have undertaken Major Development in violation of the Coastal Area Management Act
(CAMA). No person may undertake Major Development in a designated Area of
Environmental Concern without first obtaining a permit from the N.C. Department of
Environment and Natural Resources. This requirement is imposed by N.C. General Statutes
(herein abbreviated N.C.G.S.) 113A-118.
Information I have indicates that you have undertaken Major Development by constructing
approximately 60 ft2 of additional dock and installing 2 mooring cleats (adding at least one
more if not two more slips) on your existing dock at the aforementioned site. In addition,
you have extended the high ground end of the existing concrete boat ramp by approximately
six feet. From the information I have, both development activities encroached either onto
or within the riparian area of the adjacent property owner. This unauthorized development
took place in the Estuarine Waters, Public Trust Areas, and Estuarine Shoreline of the
manmade canal off Bogue Sound. No permit was issued to you for the previously described
development. Therefore, I have concluded that you are in violation of the permit
requirement of the Coastal Area Management Act.
I request that you immediately CEASE AND DESIST any further development. Since the
development you have undertaken may not be consistent with the applicable standards, you
may be required to restore the area to its former condition. A civil assessment of up to
$2500.00 may be assessed against any violator. Each day that the development described
in this Notice is continued or repeated may constitute a separate violation which is subject
to an additional assessment of $2500.00. An injunction or criminal penalty may also be
sought to enforce any violation (NCGS 113A-126).
MOREHEAD CITY OFFICE
HESTRON PLAZA II 151-8 HIGHWAY 24 MOREHEAD CITY NC 28557
PHONE [phone] FAX [phone]
AN EQUAL OPPORTUNITY /AFFIRMATIVE ACTION EMPLOYER - 50% RECYCLED/10% POST -CONSUMER PAPER

Mr. Marvin Cardon
Page 2
February 8, 1999
It is the policy of the Coastal Resources Commission to assess a minimum civil penalty of Three
Hundred Fifty Dollars ($350.00) against all violations. This is done to recoup some of the costs of
investigating the violation and/or to compensate the public for any damage to its natural resources.
Whether a higher amount will be assessed will depend on several factors, including the nature and area
of the resources which were affected and the extent of the damage to them. If restoration of the affected
resources is requested but is not undertaken or completed satisfactorily, a substantially higher civil
penalty will be assessed and a court injunction will be sought ordering restoration.
To bring the unauthorized major development into compliance with the CAMA, you must: 1) Provide
this office with either a survey showing that the high ground development associated with the boat ramp
extension is on your property or provide a letter from the adjacent property owner authorizing you to
undertake work on their property. If neither document is provided, then the boat ramp extension must
be removed. 2) Provide this office with a letter from Pine Knoll Association authorizing you to extend
your dock in front of their property or remove that section of the dock and the associated mooring cleats
not authorized by Mr. Roy Brownlow, Pine Knoll Shores Building Inspector and LPO on December 17,
1998 and as shown on the attached Restoration Plan.
Provided you intend to cooperate with this request, please sign one of the attached Restoration Plans and
return it to me in the enclosed, self-addressed envelope. No response from you within ten (10) days of
receipt of this letter will be interpreted as a refusal to cooperate and result in a Notice of continuing
violation and a court order will be sought ordering restoration.
Thank you for your time and cooperation. If you have any questions about this matter, please don't
hesitate to contact me at my Morehead City office [phone].
Sincerely,
M. Ted Tyndall
District Manager
Enclosures
cc: Charles S. Jones - Assistant Director, DCM
Charles Pigott - Coastal Management Representative
Roy Brownlow - Pine Knoll Shore, LPO
Richard Ray - PKA
Jeff Richter - USACOE

RESTORATION PLAN
FOR
MR. MARVIN CARDON
PROPERTY LOCATED AT 119 LOBLOLLY DRIVE, IN PINE KNOLL SHORES
CARTERET COUNTY
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I, Marvin Cardon, agree to either provide the above requested information or remove that section of
the dock and boat ramp that I constructed or had constructed, as requested. I agree to complete this
restoration by March 8, 1999 or provide the Division of Coastal Management with a reasonable request
for time extension.
Mr. Marvin Cardon
DATE: , 19
It is the policy of the Coastal Resources Commission to levy at least a minimum civil assessment of $350
against all violations of this nature. If restoration of the affected resources is not undertaken or
completed satisfactorily, a substantially higher civil assessment will be levied and an injunction sought
to require restoration.

RESTORATION PLAN
FOR
MR. MARVIN CARDON
PROPERTY LOCATED AT 119 LOBLOLLY DRIVE, IN PINE KNOLL SHORES
CARTERET COUNTY
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I, Marvin Cardon, agree to either provide the above requested information or remove that section of
the dock and boat ramp that I constructed or had constructed, as requested. I agree to complete this
restoration by March 8, 1999 or provide the Division of Coastal Management with a reasonable request
for time extension.
Mr. Marvin Cardon
DATE: , 19
It is the policy of the Coastal Resources Commission to levy at least a minimum civil assessment of $350
against all violations of this nature. If restoration of the affected resources is not undertaken or
completed satisfactorily, a substantially higher civil assessment will be levied and an injunction sought
to require restoration.

Y N.C. Divison of Coastal Management
Hestron Plaza II, 1516, Hwy. 24
Morehead City, NC 28557
NC DIVISION OF COASTAL MSA HWY. 24 NT
HESTRON PLAZA It, 151
MOREHEAD CiTy, C 28557

v N.C. Divison of Coastal Management
Hestron Plaza II, 151 B, Hwy. 24 CERTIFIEDMORENEHD CITY
Morehead City, NC 28557�� ��'' NC 28557
Q 1111 $2.980 $2.980 $2.980
�I
First NOice � °� - FEB 08 99 3812686
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Mr. Marvin Cardon
2108 Camrose Street
Raleigh, NC 27608-1669
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SENDER:
I also wish to receive the
■ Complete items 1 and/or 2 for additional services.
fOIIOWIng services (for an
■ Complete items 3, 4a, and 4b.
■ Print your name and address on the reverse of this form so that we can return this
extra fee):
card to you.
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UNITED STATES POSTAL SERVICE
First -Class Mail
Postage & Fees Paid
USPS
Permit No. G-10
• Print your name, address, and ZIP Code in this box •
NC DIVISION OF COASTAL MANAGEMENT
HESTRON PLAZA 11, 151-8, HWY. 24
MOREHEAD CITY, NC 285'
[phone]

10
What is the riparian area? The law at the time of the deed
from the Roosevelts to Youngblood, with regard to a definition of
riparian rights, is found in O'Neal v. Rollinson, 212 NC 83 (1937).
The case Cites Bond v. Wool, 107 NC 139 and quotes it as follows:
"In the absence of any special legislation on the subject, a
littoral proprietor and a riparian owner, as is universally
conceded, have a qualified property in the water frontage
belonging, by nature, to their land, the chief advantage growing
out of the appurtenant estate in the submerged land being the right
of access over an extension of their water fronts to navigable
water, and the right to construct wharves, piers or landings,
subject to such general rules and regulations as the Legislature,
in the exercise of its powers, may prescribe for the protection of
the public rights in rivers and navigable waters." The case
adopted the definition of the area from 45 CJ 495 and states "the
apportionment of riparian rights as between adjoining riparian
owners is made by extending lines from the ends of the side lines
at right angles to'the line of the water front, if the latter be
straight or substantially so, subject to variation where the line
of navigation is not parallel with the shore line, without regard
to the direction of the dividing lines of the upland parcels."
This case extended the lateral lines perpendicular to the shore and
the canal.
In Gaither v. Hospital, 235 NC 431, it was specifically set
forth "that the banks of a navigable stream are private property".
It further adopts a definition of riparian rights as set forth in

11
Bond v. Wool. Capune v. Robbins, 273 NC 581, again refers and
quotes from these above set forth cases.
The most famous case of North Carolina's riparian rights cases
is, of course, Shepard's Point Land Company v Atlantic Hotel, 132
NC 517 (1903), which sets forth "the following rights may be
enumerated as pertinent to property upon public waters:
1. The right to be and remain a riparian proprietor and to
enjoy the natural advantage thereby conferred upon the land by its
adjacency to the water.
2. The right of access to the water including a right of way
to and from navigable parks.
3. The right to build a pier or wharf out to the navigable
water subject to any regulations by the State.
4. The right to accretions or alluvium.
5. To make reasonable ude of the water as it flows past or
laves the shore."
In the Matter of the Protect- of Clyde Mason Jr., 78 NC App.
17, the Court cited the above set forth in the Shepard's Point case D
and further sets forth "riparian rights are vested property rights
'I
that cannot be taken for private purposes or taken for public
purposes without compensating the owner and they arise out of
ownership of land bounded or traversed by navigable water." In the
Mason case, the Court saw fit to redefine the riparian are and sets
forth "The line of division of areas of riparian access shall be
established by drawing a line along the channel or deep water in
front of the properties, then draw a line perpendicular to the line

/ V /

12
of the channel so that it intersects with the shore at the point of
the upland property line meets the water's edge." In this instant
case it will make no difference as the method set forth in O'Neal
y. Rollinson and as in the Mason case, they both cover the same
area.
In Jones v. Turlington, 243 NC 681, Jones had conveyed the
land in which the riparian question had arisen, claimed for various
reasons he was entitled to the land that had accreted in the
riparian area. The Court in this case cited O'Neal v. Rollinson,
212 NC 83, and in turn Bond v. Wool, 107 NC 139. The plaintiff has
sold this property. His grantee was the riparian owner and
therefore was entitled to the accretion.
PLAINTIFF'S III. WHETHER THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT IN A FASHION
THAT POSSIBLY SERVES AS A JUDGMENT ON THE
ISSUE OF WHETHER DEFENDANT WAS VIOLATING
RESTRICTIVE COVENANTS WHEN PLAINTIFF
VOLUNTARILY DISMISSED VIOLATION OF
RESTRICTIVE COVENANTS AS A CAUSE OF
ACTION
The Plaintiff moved for summary judgment on the claim of
Defendant's violation of Plaintiff's riparian rights on the ground
"that there is no genuine issue as to any material fact . . ." and
does cite in support of the motion the King map, declaration of
restrictive covenants, and all of the rest of the exhibits as
contained in the record. The Plaintiff contends it has moved to
dismiss certain causes of action pursuant to Rule 41. The record
discloses at R p. 109 that he stated "with respect to the issue of

13
restrictive covenant violation, we would like to and voluntarily
dismiss that cause of action pursuant to Rule 41."
It is true that our Court has expanded Rule 41 requirement of
a written stipulation of dismissal to allowing an oral notice in
open court. Danielson v. Cummings, 300 NC 175. As the Plaintiff
was not attempting to dismiss the entire case, the Court would have
to guess what it was attempting to dismiss. The Court would have
to assume the Plaintiff was attempting to specifically dismiss
count one in the original complaint, part of count three in the
amended complaint, portions of count two of the original complaint.
We must also consider, the Defendant had filed a counterclaim
predicated upon these particular causes seeking action in the event
the Court found the restrictive covenants valid. Our Court has
consistently held that the Plaintiff may not dismiss his action by
filing a notice of dismissal, that would defeat the rights of a
defendant who has theretofore asserted some grounds for affirmative
relief. McCarley v. McCarley, 24 NC App. 373, 210 S.E.2d 531
(1975); Swyaert v. Swyaert, 46 NC App. 173, 264 S.E.2d 902 (1980).
PLAINTIFF'S IV. WHETHER THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY GRANTING SUMMARY
JUDGMENT TO DEFENDANT AND DISMISSING
PLAINTIFF'S ENTIRE CASE INCLUDING
PLAINTIFF'S CAUSE OF ACTION FOR TRESPASS,
WHEN THE PLEADINGS, AFFIDAVITS OF THE
PARTIES AND SUPPORTING DOCUMENTS AND
DISCOVERY, ESTABLISH A MATERIAL AND
GENUINE ISSUE OF FACT ON THAT ISSUE
The Plaintiff's complaint alleges that the Defendant on
January 1, 1994, and on other dates, moored his boats adjacent to
and abutting the property of the Plaintiff, tied off said boats to

14
the bulkhead located upon the property owned by the Plaintiff, this
is Plaintiff's claim of trespass.
In support of this claim and in support of Plaintiff's motion
for summary judgment, Plaintiff has submitted Articles of
Incorporation of Pine Knoll Association, Inc. (R p. 33) and the
restrictive covenants (R p. 38) to disclose that all lot owners of
Pine Knoll Shores, especially the sections involved in this
controversy, are members of the said Pine Knoll Association, Inc.
and have rights to use and utilize the "common properties". The
affidavit of Robert Ruggiero (R p. 75) discloses that the seawall
complained of by the Plaintiff is not located as shown on the
subdivision plat but is somewhere else, probably in the riparian
area of the Defendant. The affidavit does not state the Defendant
was told to remove his vessel from the said wall nor does he state
that Defendant as a member cannot use said wall. The Plaintiff has
offered no evidence showing a right to recover for trespass and
would not be entitled to summary judgment nor should it complain
because the action"is dismissed on Defendant's motion for summary
judgment.
DEFENDANT'S III. IS THE DEFENDANT A RIPARIAN OWNER AND
ENTITLED TO USE THE RIPARIAN AREA
INCIDENTAL TO THIS LOT?
A deed had been made to Defendant's ancestor in title with the
special provision "together with all riparian and littoral rights
incident and attached thereto .". There are six deeds in the
chain to the Defendant.

15
The Courts have held in many cases in construing deeds it is
the function of the Court to determine the true intent of the
parties as embodied in the- entire instrument. Board of
Transportation v. Pelletier, 38 NC App 533, 248 S.E.2d 413 (1978).
In construing the intent of Roosevelt, an examination of the title
would disclose that the Roosevelts were the owners of the property;
second, the restrictive covenants; thirdly, the map; fourthly, the
deed to Youngblood, thence the deed five years later to the
Plaintiff. The examination of the Youngblood deed disclosed a full
conveyance of the property together with all the riparian rights.
The only other possible conflict in the title would have been the
instrument conveying to the Plaintiff "all of the right, title and
interest of the parties of the first part, which they have retained
in and to the following described park or recreational areas
We refer the Court to the many cases previously cited relating
to "riparian rights". The recording statutes are designed to
protect prospective purchasers of land, and protects the grantee
from the claims of other purchasers as set forth in Hayes v.
Richard, 245 NC 687, 97 S.E.2d 105 (1957), "the purpose of the
statute is to point out to prospective purchasers the one place
where they must go .to find the condition of land titles, the public
registry."
CONCLUSION
It is to be observed that both parties moved for summary
judgment in this case. The Plaintiff, as well as the Defendant,

16
contended that there were no findings of fact to be found by the
Court. The Plaintiff now contends that the Court should have found
facts incidental to an equitable division. Plaintiff admits its
concrete wall in not in the place where the subdivision map said it
should go; therefore, it possibly violates the riparian area of the
Defendant. The Court, when it heard argument of the Plaintiff on
its motion for summary judgment, was confronted by the Plaintiff
suddenly asking for a fact finding in equity.
The Defendant paid a valuable consideration for this property
with its chief value being its access to water and now the
Defendant is being subjected to litigation as the Plaintiff, the
grantor's alter ego, attempts to deprive him of that which he
purchased. This is an artificially created body of water and no
one is involved in this litigation excepting the Defendant and the
homeowners association, who contends that the Defendant does not
have the riparian rights previously conveyed to him.
WHEREFORE, Defendant respectfully submits that judgment in
this cause should be affirmed.
Respectfully submitted this day of June, 1996.
74E-nY, WHEATL-�-;.NOBLES & WEEKS, P.A.
By:
C. -R-. Wheatly, Jr.
Attorneys for Defendant/Appellee
PO Drawer 360 - 410 Front Street
Beaufort, NC 28516
[phone]

17
CERTIFICATE OF SERVICE
This is to certify that the undersigned has this date served
this Defendant/Appellee's Brief on all parties to this cause by
hand delivering a copy hereof addressed to:
Neil B. Whitford
KIRKMAN & WHITFORD, P.A.
710 Arendell Street, Suite 104
Morehead City, NC 28557
This the Z 1 day of June, 1996.
WHEATLY, WHEATLY, NOBLES & WEEKS, P.A.
C. R. Wheatly, Jr. L
Attorneys for the Defendant/Appellee
P. 0. Box 360
410 Front Street
Beaufort, NC 28516-0360
[phone]