04-15_Floyd, Alexander G. Janet_20040907

loco vernmen t 7�
SEP 17 2004 CAMA
Morehead City MMOR DEVELOPMENT
PERMIT
as authorized by the State of North Carolina, Department of Environment
and Natural Resources and the Coastal Resources Commission for development
in an area of environmental concern pursuant to Section 113A-118 of the
General Statutes, "Coastal Area Management."
Issued to Alexander G. & Janet M. Floyd —authorizing development in Morehead City, North Carolina
ember
at__ _ IS1.3 Shackiiefardfeeei
as requested in the permittee's application, dated 711610.4
This permit, issued on 917104 is subject to compliance with the application and site drawing (where consistent
with the permit), all applicable regulations and special conditions and notes set forth below. Any violation of these terms may subject
permittee to a fine, imprisonment or civil action, or may cause the permit to be null and void.
1. All proposed development and associated construction must be done in accordance with the
permitted workplat drawing (s) as originally submitted.
2. All construction must conform to the North Carolina Building Code requirements and all other
Local, State and Federal regulations.
3. Any change or changes in the plans for development, construction, or land use activities will
require a re-evaluation and modification of this permit.
4z Pursuant to 15 NCAC, Subchapter 710406(b), this permit may not be assigned, transferred, sold
or otherwise disposed of to ra third -party.
5. Sand fence is to be located no closer than eight (8) feet to the normal high water mark"
6. Applicant is to call this office (252-726-6848 X25) a minimum of one week prior to installation, for
staking of sand fence location by local CAMA office.
7. A copy of this permit shall be available onsite for regulatory inspection.
This permit action may be appealed by the permittee or other
qualified persons within twenty (20) days of the issuing date.
From the date of an appeal, any work conducted under this per-
mh must cease until the appeal is resolved.
This permit must be on the project site and accessible to the
permit officer when the project is inspected for compliance.
Any maintenance work or project modifications not covered
under this permit requires further written permit approval.
All work must cease when this permit expires on December
In issuing this permit it is agreed that this project is consistent
with the local. land Use Plan and all applicable ordinances,
This permit may not be transferred to another party without
the written approval of the Division of Coastal Management.
4
A J
Richard Schulz
Town of Morehead City
(signature)
name
Plower W, 706 MOM1 address
Morehead City, NC 28557
-� Permittee
( ignatu required it special conditions above apply to permit)

�E`
Aug-17-2001 12:06pm From -TOWN OF MOREHEAD T-989 P.002/002 F-002
INTEROFFICE MEMORANDUM
TO.
R1CK SHUT TZ. CAMA LPO
FROM:
DAVM MCCABE, PUBLIC WORKS DIRT
SUBJECT:
Ixrro xAL ACCFSS - S IG"A ST.
DATE,
8/10/04
Afeer review of the proposed CAMA' permit for the consauction of fencing along the shore in
this area of Bogue Sound, the Town is opposed
primary concern is the restriction of access to an area that has been open and utilized by the
public for many decades. It would seem apparent that rights for the use of this areahave been
established and may not be withdrawn in this manner.
please contact me if you have any questions.

AurI T-2001 12:08pm From -TOWN OF FOREHEAD
T-989 P.001/002 F-002
TOWN OF MOREHEAD CITY
P.M. DRAWLER M
706 ARENDELL STREET
MOREHEAD C1YY, NORTH CAROLINA 28557
Rick Schulz, Chief Building Inspector
252-726-6848 extension 35
Eileen Benton, Building Inspector
252-7264M48 extension 36
To: Brad Shaver, CAMA From: Rick Schulz, LPO
Fax: [phone] Pages: 2
Phone: [phone] Date: August 17, 2004
Re: 1513 Shackleford Street
• Colrt+ments:
Opposition memo from the Town

Aug-12-2001 03:46pm From -TOWN OF MOREHEAD
T-935 P.002/002 F-866
MOREHIAD C= GERALD A. JONES,JFI,, Mayor
N O M C A FZ 0 L. I N A s+
DAVID HORTON, Mayor Pro -Tarn p M. Drawer M
Council 706 Arendell Street
FLOYD M. CHADWICK, JR. Morehead City, North Carolina 28557,4234 R, RANDY MARTIN
PAUL W. CORDOVA TEL [phone] cIry Aunager
JOHN F. NELSON FAX [phone]
DEMUS L. THOMPSON www,townoimorehead.com
August 12, 2004
CERTIFIED MAIL ! RETURN RECEIPT REQUESTED
Alexander G. Floyd
1513 Shackleford Street
Morehead City, N.C. 28557
RE: NOTICE TO EXTEND TIME TO GRANT OR DENY CAMA PERMIT
(MINOR) PERMIT## 04-15
Dear Mr. Floyd:
Pursuant to NCGS 113A-121(b), the undersigned hereby gives notice to the
applicant that for a good cause, and in order to properly consider all information
necessary to making a decision on this permit application, the time period within
which a final decision shall be made has been extended an additional twenty-five
(25) days.
Sincerely yours,
Richard S z
Local Permit Officer for Iving Minor
Development Permit App tions under CAMA
P.M. Drawer M
706 Arendell Street
Morehead City, N.C. 28557
252-726-6848 X38
cc: Brad Shaver, CAMA Field Representative
ADA/EOE/P Equal Opportunity Employee Provider

Aua-12-2001 03:46pm From -TOWN OF MOREHEAD
T-935 P.001/002 F-860
TOWN OF MOREHEAD CITY
P.M. DRAWPR M
706 ARENDELL STREET
MOREHEAD CITY, NORTH CAROLINA 26557
Rick Schulz, Chief Building Inspector
252.7264M extension 38
Eileen Banton, euiiding Inspector
252-72smQ extension 36
I r1rot, - M,
To: E3rad Shaver, CAMA Rxroac Rick Schutz, LIDO
Fait: 252-247-3= Pages: 2
Phone: [phone] Datm August 12, 2004
Re: 1513 Shackleford Street
• Contlmanls:
E-dension letter for the sand fencing.

Locality ��(� ��-y�(ii�_Permit Number
Pl(
Pe Ocean Hazard Estuarine Shoreline ORW Shoreline r ine Other
re( (For official use only)I l '
f PRP
.
Fr
PI GENERAL INFORMATION
JUL 2 20L 1c0r
LAND OWNER
IVMOrehead fit '• ; �._:, a -;- ��.p �
n �s- 4Ji
Name �C;�c�1er (�. r`i UUC'i (I� 6r0— / . of--»-
Address
n"k[l f a_C4 i4(4 State S '� Phone cZS -107 6
Pl City ! Y . i�_C l�l ZiP AS c� `O ao
AUTHORIZED AGENT
If ; Name
Addre:
City 1)0( fj ' HCtd 0_14CA State )L.I, _ Zip a Phoned SoZ 44-7 - 070
LOCATION OF PROJECT: (Address, street. name and/or directions to site. If not oceanfront, what is the name of
If ; the adjacent waterbody?) 1,51� Ss7
soft
r,r i"
DI DESCRIPTION OF PROJF,�CLlkl�
all ro osed construction and land disturbance.) �eLtt (Ef1 (5 r 661,^i CC_
li vcam'` -F Ff- pt-
KPL. t{-% pAn- ay-N . &AC4 in (v .�IrJ-�t� h W&I k cra -N S C'W',gr, .rd All �t6f � �, s3P�i NI_ak e�i ski
bcfuL Pkh4U Ce,Ae�-(.t j u: o bLU I f. 6 11
SIZE F LOT/PARCEL: 1-2 , S O O square feet Y o2 4 acres
USE: Residential ✓ (Single-family Multi -family ) Commerical/Industrial
Other
N( TOTAL ENCLOSED FLOOR AREA OF A BUILDING IN THE OCEAN HAZARD AREA OF ENVI-
Ha RONMENTAL CONCERN (AEC): G t square feet (includes all floors and roof -covered decks)
SIZE OF BUILDING FOOTPRINT AND OTHER IMPERVIOUS OR BUILT -UPON SURFACES�N
THE COASTAL SHORELINE AREA OF ENVIRONMENTAL CONCERN (AEC): 1� !�a - sq. ft.
(Calculations include the area of the roof/drip line of all buildings, driveways, covered decks, concrete or masonry patios,
etc. that are within the applicable AEC. Attach your calculations with the project drawing.)
Choose the AEC area that applies to your property:
within 75 feet of Normal High Water for the Estuarine Shoreline AEC
(2) within 575 feet of Normal High Water for the Estuarine Shoreline AEC, adjacent to Outstanding
Resource Waters
(3) within 30 feet of the Public Trust Shoreline AEC
(Contact your Local Permit Officer if you are not sure which AEC applies to your property.)
STATE STORMWATER MANAGEMENT PERMIT: Is the project located in an area subject to a
State Stormwater Management Permit issued b the N.C. Division of Water Quality? '��
g y
YES NO ay1 - -f IL..lui,(.� S l ``''
If yes, list the total built -upon area/impervious surface allowed for your lot or. parcel. G�_ square feet.

)THER PERMITS MAY BE REQUIRED: The activity you are planning may require permits other than the CAMA minor
evelopment permit. As a service we have compiled a list of the kinds of permits that might be required. We suggest you check over the list
,ith your LPO to determine if any of these apply to your project: Zoning, Drinking Water Well, SepticTank (or other sanitary waste
•eatment system), Building, Electrical, Plumbing, Heating and Air Conditioning, Insulation and Energy Con
and Dune, Sediment Control, Subdivision Approval, Mobile Home Park Approval, Highway, Connection, aft,
l►�-
i
JUL 19
ATATEMENT OF OWNERSHIP:
the undersigned, an applicant for a CAMA minor development permit, being either the owner ofproperry iiran AA):Gnta; _
-rson authorized to act as an agent for purposes of applying for a CAMA minor development permit, certify that the person
sted as landowner on this application has a significant interest in the real property described therein. This interest can be
-scribed as: (check one) C-
� Ik.,lli ncler TI c� ct� u)i Q �6 5
_ n owner or record title. Title is vested in , see Deed Book
age i-(.Q in the Ckrfrr—et- County Registry of Deeds.
_an owner by virtue of inheritance. Applicant is an heir to the estate of
robate was in County. vk4wk�� I
if other interest, such as written contract or lease, explain below or use a separate sheet and attach to this application.
40TIFICATION OF ADJACENT PROPERTY OWNERS:
furthermore certify that the following persons are owners of properties adjoining this property. I affirm that I have given
iCTUAL NOTICE to each of them concerning my intent to develop this property and to apply for a CAMA permit.
(Name) (Address)
1)
)_)
3)
i)
,OR DEVELOPERS IN OCEAN HAZARD AND ESTUARINE HAZARD AREAS:
acknowledge that the land owner is aware that the proposed development is planned for an area which may be susceptible to
rosion and/or flooding. I acknowledge that the local permit officer has explained to me the particular hazard problems associ-
[ed with this lot. This explanation was accompanied by recommendations concerning stabilization and floodproofing tech-
iques.
'ERMISSION TO ENTER ON LAND:
furthermore certify that I am authorized to grant and do in fact grant permission to the local permit officer and his agents to
nter on the aforementioned lands in connexion with evaluating information related to this permit application.
-his application includes: general information (this form), a site drawing as described on the back of this application, the
wnership statement, the AEC hazard notice where necessary, a check for $100.00 made payable to the locality, and any infor-
iation as may be provided orally by the applicant. The details of the application as described by these sources are incorporated
ithout reference in any permit which may be issued. Deviation from these details will constitute a violation of any permit. Any
erson developing in an AEC without permit is subject to civil, criminal and administrative action.
Th3t—q
Landowner or person authorized to act as his agent for purpose of filing a CAMA permit application.

SITE DRAWING/APPLICATION CHECKLIST
Please make sure your site drawing includes the following information required for a CAMA minor development
permit. The drawing may be simple and not necessarily to scale. The Local Permit Officer will help you, if -
requested. _
PHYSICAL DIMENSIONS
Label roads
Label highways right-of-ways
Label local setback lines
Label any and all structures and driveways currently existing on property
PHYSICAL CHARACTERISTICS
1--'Draw and label mean high water mark
'? Draw location of on -site wastewater system
If you will be working in the ocean hazard area:
Draw and label dune ridges (note height)
Draw and label toe of dune
Identify and locate first line of stable vegetation
Draw and label setback line under CAMA
Draw and label topographical features (optional)
If you will be working in an estuarine shoreline area:
Draw and label landward limit of AEC
Describe terrain (slope)
DEVELOPMENT PLANS
Ak Draw and label areas that will be disturbed
If a house is to be placed on lot, describe location of house
Note size of piling and depth to be placed in ground
Draw and label all areas to be paved or graveled
Describe composition of surface
Not and list fully all trees and vegetation to be removed or relocated
Show landscaping
NOTE TO APPLICANT
Have y_ou:
completed all blanks and / or indicated if not applicable?
notified and listed adjacent property owners?
included your site drawing/
�gned both application and statement of ownership? .
enclosed the 100.00 fee?
• completed an AEC Hazard Notice, if necessary?
FOR STAFF USE
Site Notice Posted Final Inspection Fee Received
Site Inspections
Date of Action: Issued
Exempted Denied Appeal Deadline (20 days)
P
JUL 10 224
Revised 3/2003

Town of Morehead City
CAMA PERMFr NOTICE
Pursuant to NCGS i 13A-119(b), Morehead City, a locality authorized to issue CAMA permits in
Areas of Environmental Concern, hereby gives NOTICE that on July 19, 2004, Alexander &
Janet Floyd applied for a CAMA minor permit to erect a sand fence at 1513 Shackleford Street,
Morehead City, NC.
The application may be reviewed at the Inspections and Planning Office, 706 Arendell Street,
Morehead City, NC, during normal business hours. If you have questions you may phone (252)
726-6848, ext. 38. Public comments received by July 31, 2004 will be considered. Later
comments will be accepted and considered up to the time of permit decision. Project
modifications may occur based on further review and comments. Notice of the permit decision
in this matter will be provided upon written request.
Richard Schulz
Local Permit Officer for
Town of Morehead City
Please advertise one time
Wednesday, July 21, 2004
Bill charges to:
Town of Morehead City
Purchase Order # 37519

,A
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In
�3 BEACH
•' BOGUE
SOUND -
50.00'
84' 15'00�A
JUL 19 2004
60
VI( � L..:
ORCGN k PROPEP.SY LINES
CALL TABLE FOR HWM AS OF 4/18/01.
COURSE
BEARING
DISTANCE
L-1
N 61*4725"W
15.78'
L-2
N 6511:27"W
25.12'
L-3
N 6721'16'W
12.20'
ALEXANDER GRAHAM FLOYD
ZMACMCKff AND PHYSICAL SUIZM ..
1513 SHACKLEFORD STREET
ALL OF LOT 7.WEST 1/2 OF LOT 8&ALL OF LOT 9.8LK 143.7OWN OF MORERFAD
MOREHEAD CITY SCALE 1'-50'
MOREHEAD TWP.,CARTERET CO. NORTH CAROUN)
Per ae+aa
DEm
MAP REF: 1/139
TAX Po f. 63B6.1830 7=
JOB f 01099FL
sHW 1 OF 1
VJMF FIELD SURVEY 4/1t!/01 JDATE OF MAPPM 4/18/01
LP9 mw By: LP9 ECKED 8 j&P
JAMES I. PHIWPS LAND SURVEYING PA
LAND SURVEYING AND PLANNING
1210 ARENDELL STREET`
MOREHEAD CITY. NORTH CAROUNA
252-240-4470 PHONE OR FAX EMAIL iio3ocoaato{net.com

s Z
State of North Carolina
LACY H. THORMIL'W', Department of Justice
A'MUMSL:YC;LnL1tN1. Y.O. BOX 629
RALEIGH
27602•0629
SUBJECT TO ATI'ORNF,Y-CLIENT PRIVILEGE PER G.S. 132-1.1
--MEMORANDUM--
TO: John Parker
Division of Coastal Management
FROM: Allen Jernigan
Special Deputy one ,eneral
DATE: February 17, 1992
SU13.TLCT: State Ports Authority CA AA permit for fence at Radio Island
This
memorandum responds
to yours of February 3, 1992
regarding an
application
by the State Ports Authority'
(SPA) for a CAMA permit
to construct
a fence in the public trust, estuarine
waters and estuarine shoreline
AEC's at
Radio Island in Carteret County.
You requested advice "as to
the distance
above the
mean high water mark
the proposed fence should be
stopped." 1
thank you
for your request and am
pleased to offer this reply.
As
understand your
inquiry, DCM seeks to protect traditional lateral access
along the
estuarine beach
by allowing
a "reasonable 'pedestrian travel lane."'
Of
course, 1
am unable to advise as to
an exact distance which must remain
.
open
to the public. That
must determined
by DCM staff based on its
field
investigation.
However,
I offer the
following guidance as to the zone
which
must be
protected under the public
trust doctrine and the applicable
State
guidelines
promlugated by
the CRC.
The rules of the CRC governing development in the estuarine shoreline
AEC require that the proposed fence meet the following standards:
Development shall not significantly interfere with existing rights of access
to, or use of, navigablewaters or public resourct's. 15A NCAC
71i.U2U5(e)(5).
Established common-law and statutory public rights of access to tlle public
trust lands and water in estuarine areas shall not be eliminated or
restricted. Development shall not encroach upon public accessways nor
shall it limit the intended use of accessways. 15A NCAC 71-1.0205(e)(8).
An Equal C)l)hortunny/Afftrrn:ttive Action Employer

r
John Parker
February 17, 1992
Page 2
To apply these guidelines, it is first necessary to determine what rights in the
effected estuarine shoreline . AEC are vested in the public under the public trust
doctrine, as enunciated by the common law and statutes of this state.
1. Public Rights In The : "Wet Sand Beach"
While the upland boundary of public ownership is generally described as the
mean high water line, this is not necessarily the landward boundary of public
rights on a estuarine beach. The "mean" high water line, as defined by the
United States Supreme Court in Borax Consolidated Ltd v. Los Angel -es, 296 US
10 (1935) is the average of all tides .over 18.6 years. Generally, a surveyed
mean high water line will be located offshore of an historically eroding beach,
especially during an epoch of rising sea level. The North Carolina Supreme
Court has defined the foreshore as "[t]he strip of land that lies between the
high and low water marks, . . . that is alternately wet and dry according to the
flow of the tide. [Citation omitted.)" Capune v. Robbins, 273 NC 581, 589,
1GO SE 2d 881, 886 (1968). The boundary between the publicly owned lands and private property "is generally computed as a mean or average high -tide, and not
as the extreme height of the water." Fishing Pier, Inc. v Carolina each, 277
NC 297, 303, 177 SE 2d 513, 516 (1970). In 1979, the legisluture codified the
mean high water line as the boundary between the publicly owned lands and
private property along the Atlantic Ocean, but did not define that term. N.C.
Gen. Stat. 77-20(a). The boundary is riot static; instead, it advances towards or
retreats as the upland erodes or accretes.
In Webb V. N.C. Dept of EHNR, 102 NC App 767, 404 SE 2d 29 (1991),
the North Carolina Court of Appeals concluded that it was appropriate for DCM
to determine the location of the mean high water line "based on the presence of
natural indicators and the observation of actual high tide rather to rely on a
survey of mean high water" when the CRC's rules require a bulkhead to
"approximate mean high water or normal water level." The North Curulina
Supreme Court has made clear that, at a minimum, public trust rights on a tidal
beach extend landward to the normal or ordinary high water mark as opposed to
the "mean" high water line. A fair reading of the Ca une and Fishing Pier, Inc decisions establishes that public ownership in the wet sand beach extends to the
height of a normal high tide, excluding the "extreme height of the water"
reached at storm tides. Both cases involved the rights of littoral proprietors
who had constructed fishing piers across the foreshore into the ocean. In each
instance, the Supreme Court of North Carolina concluded:
. . .the passage under the pier must be free and substantially unobstructed
over the entire width of the foreshore. This means th,it from luw t(j high
water mark it must be at such a height that the lju►)liu %%.ill have nu
difficulty in walking under it %%-hen the tide is out ur in guinb under it
boats when the tide is high. [The "bunt" at issue in Ca ur,e was a
surfboard.]
Fishing Pier. Inc., 277 NC at 309, 177 SE. 2d at 616, quoting Capune v.
Robbins, 273 NC at 589, 160 SE 2d at 88G.

John Parker
February 17, 1992
Page 4
Citizens of Brunswick County Taxpayers Ass'n et al v Holden Beach : Enterprises,
lnc., 329 NC 37, 55, 404 SE 2d 677 (1991) Texas, Florida and Oregon have
expressly recognized that public rights in the dry sand beach may he acquired by
prescription. Seaway v. Attorney General, 375 SW 2d 923 (Tex.Civ. App. 1964).
The Concerned Citizens decision concludes that a public prescriptive easement
may be acquired "to reach the. . .seashore for fishing, bathing, and other
recreational uses." 329 NC at 53.
Under North Carolina- law, the criteria for a prescriptive easement claim
areas follows: _
1. The burden of proving the elements essential to a prescriptive
easement claim is on the party claiming the existence of the easement;
2 The law presumes that the use of a way across another's land is
permissive unless the contrary appears;
3. The use must be "adverse, hostile, or under a claim of right;"
4. The use must be "open and notorious," (i.e., discernible by the true
owner);
5. The adverse use must be "continuous and uninterrupted" . for a period
of 20 years;
6. There must be a "substantial identity" of the easement claimed.
B. Implied Dedication
Simply stated,
when a landowner acquiesces in the use of his property by
the public,. or when
adverse public use has continued uninterrupted for a
designated period of
years, a right of use vests in the public by virtue of
implied dedication of
the land to the public under this common law theory.
Gion v. City of Santa
Cruz and Dietz v King, 2 Cal. 3d 29, 84 Cal. Rptr. 1G2,
465 P 2d 50 (1970).
(Finding an implied dedication based on public use of a
beach area for more
than 100 years) Essentially, the courts imply a fictitious
donative intent to the
landowner. Other states have been more reluctant to use
the theory, and may
have additional requirements that make application to the
beach more difficult. For example, North Carolina requires public maintenance or
control of the area,
and has yet to apply the doctrine outside the -context of
public roadways.
C. Custom
Custom is an
ancient English common law doctrine little -used in the
United States, which
the Oregon Supreme Court rejuvenated in 1969 to find
public rights in the dry sand beach without relying on prescription or implied
dedication. State ex
rel Thornton v. Hay, 254 Ore. 584, 462 P 2d 671 (190).
Generally, the custom
must have continued from "time immemorial." The Oregon
court reasoned that since public use of the, dry sand beach was "so notorious
that notice of the custom
on the part of persons buying land along the shore
must be presumed (i.e.,
for as long as people have claimed property rights in

s
John Parker
February 17, 1992
Page 3.
Ahougl `'ie''bachtdio islarrdis" along` anP estuarine shoreline, rather
���
than tlre—Atlantic ;Ocean,, its. tidelands are_-.noneth�Iess—=subject do —public -trusC"'
ightS.a As the North Carolina Supreme Court stated in State, ex rel. Rohrer v.
Credle, 322 NC 522, 369 SE 2d 825 (1988):
At common law, the English sovereign owned the sea and the lands
over which the tide ebbed and flowed, but this ownership was subject to
restraints imposed by the rights of the people to -use, for example, the
- -_ waters for fishing and navigation and the river banks and seashores for
towing and drying nets. The concept of the "public trust" doctrine
evolved from the theory that presumed that the Crown held title to tidal
lands and waters for the benefit of the public. (Emphasis supplied;
citations and footnote omitted].
322 NC at 525. Accord, Ward v. Willis, 51 NC (G Jones) 183 (1833).
In other words, I read North Carolina ]nw to guarantee public rights to
pass and repass unobstructed along the full width and breadth of the wet sand
beach. Therefore, the fence should at least terminate landward of the waters of
a normal high tide.
It :�sfi Id --'be 'no ted—�that1- stopping , the . fence at, the,-:normal.-high_...w ater_mark
is not necessarily ;.:sufficient to comply_ . w;th the- .CRC's :rules; ;particularly :if ;the``
�_.
dry -sand beach:;_ waterward: ,of ;'the -,vegetation -line is commonly,_, used by_
.the public
as Tan` adjunct- • of=- its use, --of the - wet-,-sand,.:,beacli;. Thus the inquiry becomes
whether the public have established common law or statutory rights of access
over the dry sand beach, so as to require the fence to terminate at some point
landward of the ordinary high water mark in order to prevent significant
interference with those existing rights.
H. Public Rights In The "Dry Sand Beach"
Typically, such rights are established under common law doctrines such as
prescription, dedication, custom or the public trust. While statutes such us G.S.
113A-13.1.1, et seq., 14G-G(f), 1-45.1 and 1GOA-308, when read together with Art.
XIV, Sec. 5 of the state constitution, and decisions of the state's Supreme Court
indicate that all dry sand beaches along the oceanfront are subject to a public
trust easement, it is more difficult to reach that conclusion for all estuarine
beaches. Although G.S. 113-131 protects legal rights of access to public trust
areas, it does not expressly extend access rights along dry sand estuarine.
beaches. Instead, it protects those rights which exist. An exhaustive discussion
of these theories is beyond the scope of this memorandum. However, the
following brief summary is presented by way of background.
A. Prescription
Prescription is a common law doctrine similar to adverse possession under
which continuous, open and adverse use by the public of substantially the same
right-of-way across private property for an uninterrupted period of time (e.g., 20
years in North Carolina) may ripen into an easement for public use. Concerned

John Parker
February 17, 1992
Page 5
the area), the requirement was met. Id. at 676. See: McKeon, Public Access
to Beaches, 22 Stanford Law Rev. at 582-6. The U.S. Virgin Islands has
- -- endorsed custom as a means to preserve traditional access to the dry sand
beach. United States v. St. Thomas Beach Resorts, Inc., 386 F. Supp. 769, 772
(D.C.V.1. 1974), aff'd, 529 F 2d 513 (3rd Cir. 1975). However, faced with a
custom claim in the 1989 case of Bell v. Inhabitants of Town of Wells, supra,
- the Maine Supreme Judicial Court, without deciding whether the custom theory
existed in Maine law, found that the evidence of long-standing recreational use
presented in that case was not sufficient ' to raise the theory. Currently, the
doctrine seems limited to Oregon, the U.S. Virgin Islands, and Hawaii (In Re
Ashford, 50 Hawaii 314, 440 P 2d 76 (19.68)). I am not aware of any North
Carolina court decisions which explicitly recognize this theory.
D. The Public Trust Doctrine
Perlinps most significantly among recent beach access cases, the public
trust doctrine recently has been applied to preserve public access across the dry'
sand beach to the foreshore in New Jersey. In the decision of Matthews v. Bay
Head Improvement Ass'n., 95 NJ 306, 471 A2d 355, cert. denied, 469 US 821
(1984), the New Jersey Supreme Court lield that the public trust doctrine
guarantees the public the tight to cross private property (i.e. the. dry sand
beach) in order to reach the foreshore. Declining to apply prescription,
dedication or custom, because the court found them to be "[alrchaic judicial
responses to a modern social problem," the court turned to the public trust
doctrine, perceiving it "not to be 'fixed or static,' but one to 'be molded and
extended to meet changing conditions and needs of the public it was created to
benefit..' " (Citation omitted.) 471 A 2d at 365. In the recent decision of
Concerned Citizens of Brunswick Countv Taxpayers Ass'n, the North Carolina
Supreme Court expressly disavowed dicta in the lower court's opinion "to the
effect that the public trust doctrine will not secure public access to a public
beach across the land of a private property owner," noting that it is not clear
that "in its unqualified form the statement reflects the law of .this state."
Although public use of the dry sand beach is implicitly recognized in several
North Carolina decisions, the cases lack an express statement that such rights
vest under the public trust doctrine.
Conclusion
Under the CRC's Use Standards, a decision. wto._.require the fence. ,,to end at
�c�
,..water--. sold,,J.be,� .asomwv, stncermal:high.aandward
of._
xisfii g ..pub.lic:.rights---, access-.,- arising-., .T
under - -one --ahove-._ common_., law
2loc trm ines. It is not necessary to state your theory in the perit. Y'rum my
wd.-
general knowledge of. the facts, it would seem most likely that public rights
would arise under a prescriptive easement theory. The only sibmific.uit hurdle
would seem to be establishing that the long term public use of the bunch was
not permissive.
I hope this analysis is useful to you. Please let me know if you have
further questions.

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SIGNED
FORM 3002P
MADE IN U.S.A

Aua-17-2001 12:Upm From -TOWN OF MIOREHEAD T-989 P.001/002 F-002
TOWN OF MOREHEAD CITY
P.M. DRAWER M
706 ARENDELL STREET
MOREHEAD CITY, NORTH CAROLINA 28557
Rick Schutz, Chief Building Inspector
252-726.W4$ extension 38
Eileen Benton, Building Inspector
252-7264MQ extension 36
To: Brad Shaver. CAMA From: Rick Schulz, LPO
Fa m 252 247-3330 Pages: 2
Phone: [phone] Date: August 17, 2004
Re: 1513 Shackleford Street
• CAmnse ntsi
Opposition memo from the Town

Aug-17-2001 12:08pm From -TOWN OF MIOREHEAD
T-989 P.002/002 F-002
INTEROFFICE MEMORANDUM
TO;
RICK SHU1 TZ, CAMA LPO
FROM:
DA'VID MCCABE, PUBLIC W01 S DIRE
SUBJECT:
TX=RAL ACCF.SB - S 161H ST.
DATE:
8/10/04
After review of the proposed CAMA- permit for the construction of fencing along the shore in
this area of Bogue Sound, the Town is opposed.
Primary concern is the restriction of access to an area that has been open and utilized by the
public for many decades. It would seem apparent that rights for the use of this area have been
established and may not be withdrawn in this manner.
Please contact me if you have any questions.