Coastal Services Center

One of the biggest challenges for coastal resource managers is balancing personal property rights with the public's right to access and enjoy our nation's shoreline. North Carolina's ban on seawalls to protect its beaches was recently upheld in court after being challenged by a group of homeowners trying to defend their $22 million resort property from the impending tide.

"Our ban was in response to research and information that demonstrated that hardened structures on beachfronts led to the demise of sandy beaches," explains Donna Moffitt, director of the North Carolina Division of Coastal Management. "People want to come to the shore for a sandy beach. We can't sacrifice a sandy beach that is going to bring in lots of tourists and lots of tourists' dollars to protect one person's investment. Our goal is to protect the state's long-term investment, which means protecting sandy beaches."

"I understand the philosophy behind the rule and agree with the rule, but I disagree with its absolute application," says Kenneth Shanklin, attorney for the Shell Island Home Owners Association, which filed suit in North Carolina Superior Court to have the ban overturned. "If you let this building be destroyed by the inlet, for example, the private beach to the north will continue to migrate south. As a result, there will be less public beach and you will have defeated the very thing you were trying to protect."

In the late 1970s, the North Carolina Coastal Resources Commission, the policy making and rule adopting authority for the coastal program, began prohibiting the use of hard erosion control structures to protect new buildings. In 1985, the commission revised the rule to prohibit the construction of hard erosion structures to protect any building, unless it is historic and cannot be relocated, or the erosion structure is needed to protect a waterway for navigation purposes that have an overriding public need. Moffitt says temporary sandbag protection is allowed under the rule if a building is considered "threatened, meaning the erosion escarpment must be within 20 feet of the foundation or that the rate of erosion is so great that the building could be imminently in danger."

When the nine-story Shell Island Resort was built in the 1980s on Wrightsville Beach only half a mile from Mason Inlet, its developers signed permits acknowledging that they were building in an erosion-prone area. The permit says, "In signing this permit, the permittee acknowledges the risks of erosion associated with developing on the site and recognizes that current state regulations do not allow shoreline erosion control structures such as seawalls to be erected for developments initiated after June 1, 1979."

"The notice was given to the developer," and the developer then sold units to individuals as condominiums, Moffitt says.

In the Court of Appeals case, Shanklin contended the permit should never have been issued at all. He says the map of setback lines that the coastal program used to issue the initial construction permit incorrectly estimated the inlet hazard area and the degree to which the inlet would migrate. "The map was hundreds of feet off," he says. By the mid-1990s, Mason Inlet was migrating south at a rate of a foot a day. "If the map had been correct, the permit could not have been issued." He adds, "We have a building that the state helped put there, and the state's error contributed to it. If the government creates a problem, the government should help correct the problem" by allowing a sea wall to be built on state property.

In January 1996, when the inlet had moved to within approximately 200 feet of the resort with "no indication the inlet would cease to migrate," the homeowners asked for permission to install a steel seawall "right along the inlet shoreline," says Robin Smith, assistant secretary for environmental protection with the state Department of Environment and Natural Resources (DENR). The commission unanimously denied the request. That summer several requests were made and denied to install a temporary sandbag wall for protection. Smith says these were denied because the building did not meet the definition of "threatened," and the proposed wall was larger than state requirements would allow. Hurricane Fran hit the North Carolina coast in September 1996 and put the building in the category of "imminently threatened." The resort scaled down the temporary sandbag wall it wanted to build, and its fourth request for a variance was approved.

During this time, Shanklin says, his clients were working with the owners of the neighboring property to get an easement to relocate the inlet, but their negotiations failed. "We couldn't get anywhere with a hardened structure with the state—they were firm in that regard—and the property owner to the north wouldn't allow us to cross the property, so our only remaining option was to challenge the sea wall ban."

Shell Island filed a lawsuit in January 1998 against the commission and the DENR "saying the denial of a permit for a permanent structure to protect the hotel was a taking of property without consent, and challenging the hard structure rule and simultaneously trying to get an emergency permit to build a hard structure," Smith says.

About a month after the lawsuit was filed the resort owners asked the DENR secretary to issue an emergency general permit to build a steel seawall. "It would have hardened the entire inlet shoreline and would have created a jetty extending out into the Atlantic Ocean," Smith explains. "The secretary denied the request, noting that he didn't have authority to bend the commission's rules, and that they would have to go back to the commission to get a variance. They never attempted to go back to the commission, and instead pursued the lawsuit.

"Basically, they were asking the court for a permit and they had never submitted a permit application. The consequence of that was no one really knew what they were proposing to build," Smith says. A Superior Court judge threw out the lawsuit saying they had "not done what they needed to do to be in Superior Court because there was still administrative processes available to them that they didn't use."

Smith says the property owners appealed the judge's decision, and the case went to the North Carolina Court of Appeals, which ruled unanimously in July 1999 to uphold the lower court's rejection of the lawsuit. "It was a big decision for us. We were very pleased with the decision because it went into great detail in addressing all the arguments the state made, and upheld them right down the line." For instance, Smith says, the court ruled the allegation that the state was taking the property was invalid because "no property owner has the right to construct an erosion control structure on state-owned submerged lands."

"We lost our legal rights because we moved to protect the building, instead of just suing first," Shanklin says. "I don't want to be critical of the Court of Appeals decision, but I don't agree with it. The state Supreme Court has not acted on these issues and my client declined to proceed further with the appeal for political reasons to show the state that we are trying to work with them."

While the case was important to the state, Smith says those involved recognized the owners' predicament. "I think the state all along recognized the difficulty the owners of the Shell Island units were in. Everyone has empathy for that. But maintaining an almost 20-year-old policy against erosion control devices has a lot to do with what our shoreline looks like now and what it will look like into the future."

Shanklin says the resort is pursuing plans to move Mason Inlet about 3,000 feet to the north. "This is a good case of patience. In the end, I think everyone will look back and see that the rule has been preserved, the building has been preserved, and that we have more beach for the public. These are our goals and they are attainable."

Moffitt agrees. "We will continue to work with the Shell Island homeowners until a permanent and final solution is reached."

For more information about North Carolina's ban on seawalls or the Shell Island Resort case, contact Donna Moffitt at (919) 733-2293 or donna.moffitt@ncmail.net.