- Published on Saturday, 11 August 2012 02:13
- Written by Super User
The Carolina Beach Town Council was informed earlier this week they do not have legal authority to ban smoking on the beach. The Council is scheduled to hold a public hearing on a proposed ban on August 14.
By WILLARD KILLOUGH III
CAROLINA BEACH – The Carolina Beach Town Council may have to postpone plans for beachfront smoking ban set for consideration at their upcoming August 14, meeting.
At the Council's Tuesday July 10, meeting, the Council unanimously voted to direct Town Attorney Lawrence Cragie to research the details of implementing such a ban and return with a proposal at their August regular meeting.
State Session Law 2009-27 states a local government may adopt a smoking ban on local government “grounds.”
The law defines "Grounds" as an “unenclosed area owned, leased, or occupied by State or local government.”
The issue centers largely on ownership – or title to – the beach for it to be considered “local government grounds” similar to government owned parks or buildings. Town Manager Tim Owens explained on Friday August 3, a law adopted by the North Carolina General Assembly in 1985 presents a problem.
The Town previously understood a building line created in 1963 gave them title to the largest portion of the beachfront from that building line out to the ocean. The 1985 law – adopted many years later – says, “Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State. Title to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor. All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State.”
In short, Owens said that law appears to give the state title or ownership to any beach that receives public funding for beach renourishment projects. That includes Carolina Beach which has received funding from both the state and federal governments for periodic beach renourishment projects dating back many decades.
Owens said Craige would deliver a more detailed summary of his research to the Council at their August 14, meeting at 6:30PM at Town Hall.
Owens said, “At this point it appears it’s leaning towards a recommendation not to implement a smoking ban” and the Town may have to call upon state legislators for new local legislation to grant authority to enact such a ban.
In a memo delivered to Council Tuesday August 7, Town Attorney Lawrence Cragie explained, "The Public Beach (land from the low water mark westward to any land raised by a publicly financed beach renourishment project) is owned by the State of North Carolina in accordance with" state General Statute 146-6(f) and, "The Public Trust Doctrine. The Town of Carolina Beach may not adopt and enforce ordnances prohibiting smoking under" General Statute 130A-498, "Since the Public Beach is not "local government grounds."
Craige explained, "Other local ordinances adopted and enforced by the Town (leash law, alcohol consumption, vehicular access, littering) on Public Beach are generally the result of enabling legislation from the North Carolina General Assembly granting specific authority for the local government to adopt and enforce said ordinances on public land."
Craige said State law was amended January 2010 to give local governments expanded authority to regulate smoking in "public places" and on "local government grounds." That law says it's, "The intent of the General Assembly to allow local governments to adopt local laws governing smoking within their jurisdictions that are more restrictive than State law."
He explained, "In other words, is the Public Beach within the Town's jurisdiction as a "public place" or as "local government grounds" so that the Town has authority to regulate smoking under" that State law?
He explained the answer is no because the State law defines a "public place" as an enclosed area to which the public is invited or in which the public is permitted. The Public Beach is not enclosed. An area is "enclosed" if it has a roof or other overhead covering of any kind and walls are side coverings of any kind on all sides or all sides but one.
He explained "Grounds" is defined as "an unenclosed area owned, leased, or occupied by State or local government". He explained, "In other words, local governments do have the authority to regulate all unenclosed areas owned, leased, or occupied by the local government. For example, a Town may regulate smoking in the outdoor area surrounding Town Hall or a Town owned park. However, in accordance with N.C.G.S. 146(f) and as stated in an April 6, 1998 Attorney General Opinion, the Town's Public Beach is not considered "local government grounds" subject to local government regulations on smoking."
Craige said a 1963 Carolina Beach Building Line Act granted title to the Town to land between that line and the low water mark of the Atlantic Ocean subject to certain restrictions.
In 1985, the State Lands Act was amended to establish title to certain lands raised from navigable waters. A new section was added addressing title to land in or immediately along the Atlantic Ocean raised above the mean high water mark.
Craige explained, "Although the 1963 Session Law as a special legislative grant conveyed good title to the Town of Carolina Beach subject to public trust rights, publicly funded projects since May 30 1985 (to the extent they raised land within the bounds of the grant above the mean high water mark by hydraulic dredging or deposition of spoil or sand) would have vested title in the State by operation of law pursuant" to North Carolina General Statute 146-6(f).
Craige said the 1998 Attorney General Opinion reinforced the 1985 Act thus taking title to the beach away from the Town and placing it with the State due to publicly funded beach nourishment projects over the years.
Cragie explained, "In effect, the continuing beach renourishment and bulldozing activities since 1985 west of the low water mark transferred title from the Town of Carolina Bach to the State by operation of law."
He explained, "After more than 55 years of public renourishment, up-to-date surveys would probably show that virtually all oceanfront land in Carolina Beach east of the landward toe at the bottom of the west-face" frontal dune is at minimum subject to the public trust and likely owned by the State."
Because of all of the those factors, Craige said in his opinion the Town can not in fact adopt a ban on smoking on the beach.
Craige said Town's can enforce other regulations such as vehicles driving on the beach because the State General Assembly grants specific permission to enforce such ordinances if a Town chooses to do so.
State law permits a city to adopt an ordinance to regulate the illegal disposal of solid waste, including littering on public and private property and, "A city may adopt ordinances to regulate and control swimming, surfing and littering in the Atlantic Ocean adjacent to that portion of the city within its boundaries."
Since the 2010 State Law regulating bans on smoking by local governments is specific in its language, Cragie explained, "Absent enabling legislation from the general assembly that gives the Town of Carolina Beach the authority to prohibit or regulate smoking on the public beach, the Town cannot do so."
Town Manager Tim Owens explained he will recommend five options to the Council at their August 14, meeting. Those include:
1. Approve the ordinance regulating smoking on the beach realizing the limitations that the Town may have to regulate this type of item.
2. Approve the changes to the litter ordinance that specify certain tobacco products as litter when discarded.
3. Request special legislation to be able to regulate this type of activity on the beach. He explained, "I would suggest that we meet with our elected officials following the upcoming election to get their viewpoint on the matter before any formal request is made regarding this matter."
4. Hold the public hearing on the matter to receive input on the item or cancel the public hearing.
5. Delete the item from the agenda.
The Council will consider the issue at their August 14, meeting at Town Hall starting at 6:30PM. A poll on www.islandgazette.net posed the question to readers shortly after the July 10, meeting. The question was "Do you support banning smoking on the beach in Carolina Beach?"
The responses were:
184 = Yes
134 = No.
3 = No opinion.
To view comments posted by readers, visit www.islandgazette.net and look for the poll on the right hand side of the page.