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Council To Ask Legislature To Clarify Authority To Govern Beachfront

The Carolina Beach Town Council adopted a resolution asking the NC General Assembly to clarify their authority to govern the public beach. The Council adopted a beach smoking ban in 2012, but must get permission from the state to enforcement it.

Managing Editor

CAROLINA BEACH - The Carolina Beach Town Council adopted a resolution at their January 15, meeting requesting the North Carolina General Assembly clarify the Town's authority to regulate activities in the "public trust areas of ocean beaches."
That includes the beach from the dunes to the waters edge and was brought on by the Council's 2012 decision to adopt a smoking ban on the beach pending state approval.
The resolution states, "Whereas, North Carolina General Statute 77-20 formally  delineates the State's ocean beaches from the dunes to the water as public trust areas, and, Whereas, various North Carolina General Statutes provide municipal authority to regulate activities in the public trust areas of ocean beaches, and, Whereas, the Town of Carolina Beach and the other 20 oceanfront municipalities in North Carolina have historically and continue to regulate activities in the public trust areas of ocean beaches in order to promote and protect the health, safety, and welfare of the public."
The resolution states, "Whereas, the range of activities historically and currently regulated by oceanfront municipalities includes, among others: public access, beach driving, beach horseback riding, dune protection, leash laws, prohibition of litter, prohibition of fires, prohibition of camping, unattended beach equipment, preservation of adequate emergency and public service vehicle travel ways, removal of structures, smoking, prevention of dangerous holes in the sand, environmental habitat protection, and, Whereas, recent Court decisions and legal claims have called into question the authority of North Carolina's oceanfront municipalities to regulate activities in the public trust areas of ocean beaches."
It states, "Whereas, new State legislation to clarify oceanfront municipalities' authority would address these questions and provide clear guidance to oceanfront municipalities, the general public, and private oceanfront property owners" the "Carolina Beach Town Council hereby requests that the North Carolina General Assembly approve legislation to clarify the authority of oceanfront municipalities to regulate activities in the public trust areas of ocean beaches in order to promote and protect the health, safety, and welfare of the public."
The Council also forward proposed legislation for the State Legislators to consider.
That proposal is titled, "AN ACT TO CLARIFY THE AUTHORITY OF MUNICIPALITIES TO REGULATE THE STATE'S OCEAN BEACHES" and states, "1. Pursuant to a municipality's authority to define, regulate, restrict, abate and prohibit acts, omissions, or conditions determined by the municipality to be detrimental to the health, safety, or welfare of its citizens and its peace and dignity, a municipality by ordinance may regulate, restrict and prohibit the placement, development, maintenance, repair, alteration, improvement, location and use of structures, equipment, personal property, and debris upon the barrier dunes or the State's ocean beaches located within or adjacent to the jurisdictional boundaries of the municipality. Pursuant to this authority any such municipality may adopt such an ordinance to prevent or abate the unreasonable restriction of the general public's rights to use the State's ocean beaches. Any such ordinance may provide for summary procedures to remove or abate offending items, except any procedure potentially resulting in the removal of otherwise lawful structures that are not in imminent danger of collapse shall include provisions for notice and hearing before the municipality's governing board and recovery of the municipality's costs for the same in the manner provided by N.C.G.S. 160A-441 et. seq. Otherwise and additionally, any violation of an ordinance adopted pursuant to this section may be enforced by any remedy available under N.C.G.S. 160A-175. Nothing herein shall preclude a municipality from seeking the removal or abatement of any structure through a court order entered by any court of competent jurisdiction, either as an alternative to or in lieu of any other remedy available to the municipality under this section."
The proposed law states, "Nothing herein shall be deemed to limit other existing authority of municipalities or the authority of the State of North Carolina or its agencies to regulate the State's ocean beaches consistent with the laws of this State. The provisions of this Act shall not be construed to impair the right of the people to the customary free use and enjoyment of the ocean beaches, which rights remain reserved to the people of this State under the common law and are a part of the common heritage of the State recognized by Article XIV, Section 5 of the Constitution of North Carolina. Likewise, nothing herein shall be deemed to interfere with, invalidate or act as a taking of riparian, littoral or other ownership rights of owners of property bounded by the Atlantic Ocean" and, "The term 'ocean beaches" as used herein shall be as defined in NCGS 77-20(e)."
Planning Director Ed Parvin explained at the Council's January 15 meeting, "The Town adopted... an ordinance for banning smoking on the beach in [August] of this year. That ordinance cannot be enforced unless we have special legislation that goes to the General Assembly."
Wrightsville Beach has a similar ban in place approved by the voters during the Novemeber 2012 election. Parvin said former New Hanover County Commissioner and House Reprentative Ted Davis, "Has requested that all beach communities that are interested, and Kure Beach, Wrightsville Beach, Carolina Beach, are all interested in this potential legislation, that we all adopt a resolution in support."
He said, "Wrightsville Beach is looking to adopt theirs January 17... all the attorneys have been working together to bring" this legislation forward.
If the General Assembly votes to approve such legislation, the beach-smoking ban in Carolina Beach could begin enforcement this coming summer.
With that legislation the smoking ban would encompass the entire beach imposing a fine for violations.
The Council voted unanimously to forward the resolution and proposed legislation to the State General Assembly.
Unlike Carolina Beach and Wrightsville Beach, the Kure Beach Town Council has not approved a ban.