Judge dismisses case challenging public access; plaintiffs appeal

A state judge on July 21, 2003, dismissed a lawsuit by Currituck County landowners who sought to exclude the public from the beach in front of their homes.

Superior Court Judge J. Richard Parker of Manteo dismissed the case, brought in 1998 by landowners in the Whalehead Subdivision near Corolla, on procedural grounds. Parker rejected the plaintiffs' claim that they had a right to sue the state. The plaintiffs have appealed the decision.

The lawsuit, in part, challenges the right of the public to use the dry-sand beach -- the area between the wet sand and the dune line. The case is Giampa, et al. v. Currituck County, et al. (98 CVS 153).

The oceanfront property owners, all non-residents, seek exclusive rights to the dry-sand beach. The lawsuit also has asked the court to restrict the use of beach access dune crossovers in the subdivision to residents of Whalehead and their guests, although the accessways were improved with state and county funds as much as 10 years ago. The Giampa case is the first case in North Carolina to directly challenge the public's right to use the dry-sand beach for recreational purposes.

The state's position is that although state ownership ends at the mean high water line, the public has always enjoyed the right to use the full width and breadth of the state's ocean beaches seaward of the dune line, under the common law theories of customary use since "time immemorial," the public trust doctrine, implied dedication or, alternatively, prescriptive use.

Update (Nov. 2005)
The N.C. Court of Appeals, in a unanimous decision issued October 18, affirmed a trial court’s 2003 dismissal of all claims against the State in a lawsuit by Currituck County landowners who sought to exclude the public from the beach in front of their homes. The lawsuit, brought in 1998 by landowners in the Whalehead Subdivision near Corolla, in part challenged the right of the public to use the dry-sand beach -- the area between the wet sand and the dune line.

You can find out more about the issue of public use of the dry-sand beach by reading the following documents:

"Private Title, Public Use: Property Rights in North Carolina's Dry-Sand Beach," a master's thesis (156K) by Christopher City, who recently completed a joint law and planning degree at the University of North Carolina at Chapel Hill.

"Where's the Beach? Drawing a Line in the Sand to Determine Shoreline Property Boundaries in the United States and the Resulting Conflict Between Public and Private Interests" by Jean Campbell (633K), published by the William S. Richardson School of Law at the University of Hawaii at Manoa.

"The Changing Face of the Shoreline: Public and Private Rights to the Natural and Nourished Dry Sand Beaches of North Carolina" by Joseph J. Kalo (3.78MB), published in the September 2000 North Carolina Law Review.

Note: These papers are in PDF format and require Adobe Acrobat Reader to download.

If you do not have Acrobat Reader, you can download it free from Adobe's Web site.