tag: North Carolina Land Use Litigator: January 2016

BLOGS: North Carolina Land Use Litigator

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Thursday, January 21, 2016, 10:58 AM

The Thin Line Between Land Litigation and Land Use Controversies

Frequently, land litigation—land boundary and ownership claims - is a controversy concerning the use of land.  The recent case of Hedgepeth v. Parker’s Landing Property Owners Association, Inc. ___ N.C. App. ___ ___ S.E.2d ____(2016 WL 47700) illustrates the thin line between land litigation and land use controversies.

In Hedgepeth, plaintiff and Parker’s Landing Property Owners Association (“POA”) are neighbors. Plaintiff desires to develop his property as a residential subdivision, but must possess sufficient access to a public street to secure development approvals from Currituck County.  The only access from plaintiff’s property to a public road lies on the POA’s property.

          1.  The Federal Lawsuit and Claims of Easements Across Plaintiff’s Property

In 2007, plaintiff commenced a federal lawsuit asserting possession of one or more easements across the POA’ property based upon a variety of legal theories: express easement, easement by necessity, implied easement, easement by equitable estoppel and quasi-estoppel – estoppel by acceptance of the benefits.  In 2009, the Federal District Court found plaintiff owned two limited historical easements across the POA’s property.

The relief granted by the federal court was unsatisfactory to plaintiff.  The easements were limited to agricultural purposes and narrow.  Development of plaintiff’s property as a residential subdivision remained impossible. Plaintiff appealed this decision to the Fourth Circuit Court of Appeals and the Fourth Circuit affirmed the decision in 2010.

        2.  The State Court Lawsuit and Claim of Boundary Line Mislocation 

In 2009, plaintiff filed a new land litigation case against the POA and individual Parker’s Landing lot owners in state court.  Plaintiff asserted two principal claims.  First, plaintiff sought a declaration extending the federal court’s declaration of historic easements to individual lot owners who had not been parties in the federal lawsuit.  Second, plaintiff asserted that the common boundary line between his property and the POA’s property was misplaced, giving plaintiff access to a public street because it had been mistakenly built on plaintiff’s property.

This lawsuit triggered a cascade of land litigation lawsuits, claims and dismissals between plaintiff, defendant and individual lot owners.  Plaintiff filed a motion for summary judgment on the grounds of res judicata and collateral estoppel, contending that the two easements declared by the federal district court were binding against the POA and various lot owners.  The trial court denied plaintiff’s motion and plaintiff appealed to the North Carolina Court of Appeals.  

                a.  The First State Court Appeal

In 2014, the North Carolina Court of Appeals partially affirmed and reversed the trial court’s ruling.  Describing the vortex of multiple land litigation cases, claims and dismissals arising from this state court case as a “quagmire”, the Court held that the POA was bound by the federal court’s judgment, held that the lot owners were not bound by the federal court decision because they had not been parties in the federal lawsuit and held that decision in the federal lawsuit did not preclude plaintiff’s boundary law claim on the grounds of res judicata. The parties returned to trial court to litigate the boundary line claim.

               b.  The Second State Court Appeal

In 2015, the trial court granted the POA’s motion for summary judgment regarding plaintiff’s boundary law claim.  Plaintiff appealed to the North Carolina Court of Appeals and in January 2016, the Court of Appeals reversed.  The Court of Appeals returned the case to the trial court for further proceedings.

The Court of Appeals’ analysis centered upon application of judicial estoppel, a doctrine formally recognized as part of the common law of North Carolina in 2004.  The POA asserted that plaintiff had conceded its ownership of the property on which the road was located in the federal lawsuit and plaintiff was judicially estopped to assert its boundary line claim. The Court of Appeals noted that judicial estoppel does not preclude inconsistent legal theories and in the federal lawsuit “[n]o stipulations were made concerning the underlying ownership or the location of a disputed boundary line.”

1. These cases illustrate the interplay between governmental development approvals and adequate land rights. Without adequate land rights, governmental approvals are unattainable.

2. Land litigation and land use controversies are similar in one respect.  These disputes are between neighbors concerning their enjoyment of their land. Once neighbor relationships are frayed, litigation can be long lived.  The parties are in their ninth year of litigation and the litigation continues forward.

Thursday, January 7, 2016, 3:03 PM

Water and Land Part 2

Water and Land

In Part I, we discussed the lawsuit between the State of North Carolina and Alcoa which determined that Alcoa owns a 45 mile portion of the Yadkin River riverbed. State of North Carolina v. Alcoa Power Generating, Inc., 5:13-CV-00633 (E.D.N.C.) (September 28, 2015).    In Part II, we turn our attention to the North Carolina public trust doctrine.

Part II:  Ocean Beaches and the Public Trust Doctrine

As noted in Part I, Federal law holds that the public trust doctrine is governed by state law.  Traditionally, North Carolina’s public trust doctrine establishes public access in inland waters, but not to inland waters.  In other words, the bank of a river may be exclusively owned a private citizens and the public has no right to access the river by traveling over this private property. 

But what is the law where there is no defined bank, like an ocean beach of shifting sand where the surface of the water expands and contracts according to tides and storm events? 

A North Carolina beach, the area from the high water mark of the storm tide waterward is composed of two areas – the wet sand beach and the dry sand beach.  Generally, the wet sand beach or foreshore – the area from the mean high water mark to the ocean - is owned by the State of North Carolina.  The dry sand beach – the area landward from the mean high water mark to the high water mark of the storm tide is frequently owned privately. 

In Nies v. Town of Emerald Isle, ___ N.C. App. ___, ___ S.E.2d ____(2015 WL 8272743), private property owners claimed that they owned the dry sand ocean beach exclusively.  Instead of bringing a civil action of trespass against members of the public using this portion of the beach, the Nies sued the Town of Emerald Isle because the Town regulated this area and had issued beach driving permits entitling permittees to drive on this portion of the beach.  Therefore, the Nies claimed the Town had taken their property and sought just compensation. The trial court entered summary judgment in favor of the Town against the Nies’ inverse condemnation claim and the North Carolina Court of Appeals affirmed the trial court.  Writing for the Court of Appeals, Chief Judge McGee noted that the “public right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness.”  Relying upon statutes adopted by the General Assembly addressing public rights to use ocean beaches, the North Carolina Court of Appeals held that “ocean beaches of North Carolina include both the wet sand beaches – generally, but not exclusively publically owned- and the dry sand beaches – generally, but not exclusively, privately owned” and the entire beach is generally subject to public trust rights.   Accordingly, the Town did not take the Nies’ property by regulating driving on the dry sand beach and issuing beach driving permits.   


The North Carolina Court of Appeals did not uncover any prior North Carolina holding establishing the landward extent of North Carolina ocean beaches.   Why might that be?  In the past, beaches were transitory areas always subject to high winds and sea water.  But places where water and land intersect have become important.  As environmentally sensitive and valuable recreational and water usage areas, these places receive special attention.  This trend is unlikely to abate.  To the contrary, these special places are likely to receive more attention.  

Is there another reason that cases concerning places where land and water meet might be important? These cases illustrate a division between two strong policy concerns which are polar opposites.  On the one hand, preserving and protecting private property rights from unreasonable and unfair governmental intrusion is an important policy concern, but, on the other hand, preserving and protecting public resources and public access to these resources is an important policy concern.  Reconciling these principles is a difficult and dynamic process, not unlike the places which give rise to these cases.  Therefore it is unsurprising that the losing parties in both cases are appealing.

One phenomenon is reasonably clear.  As the State of North Carolina grows and more people live, work and play within the same geographical boundary, places where land and surface water meet will continue to grow in importance.    

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