{ "id": 8953866, "name": "NILES D. SLAVIN and wife, CAROL J. SLAVIN; BENNET L. HUSSEY and wife, LILLIE E. HUSSEY; ROBERT LEE MANN; SANDRA H. WILSON and husband, THOMAS A. WILSON; RALPH W. PETERS, JR. and wife, JOYCE PETERS; DAVID A. MILLER and wife, LORI H. MILLER; JUDY C. MARTIN and husband, WILCO A. MARTIN; JOSEPH BEAM, JR. and wife, JUDITH ANN BEAM; W.H. ODELL; MICHAEL J. GOODMAN and wife, MARIAN GOODMAN; DONALD PROTO and wife, ELIZABETH W. PROTO; DOZIER PROPERTIES, INC., a North Carolina Corporation; PETER R. DeMAO; LARRY V. HOGAN and wife, MARGARET F. HOGAN; F. EUGENE LILLEY and wife, MARJORIE E. LILLEY; GEORGE P. WHITE, a single person; WOODROW W. BLACKBURN and wife, BETTY N. BLACKBURN; BRANTLEY E. CLIFTON and wife, MEREDITH B. CLIFTON; DOROTHY O. FLOYD, a widow; JOHN HAIRSTON, JR. and wife, DELANEY G. HAIRSTON; ERVIN L. McCRAY and wife, LINDA L. McCRAY; and JOHN C. WILKS, a single person, Plaintiffs v. TOWN OF OAK ISLAND, a North Carolina Municipal Corporation and Body Politic, Defendant", "name_abbreviation": "Slavin v. Town of Oak Island", "decision_date": "2003-08-19", "docket_number": "No. COA02-671", "first_page": "57", "last_page": "61", "citations": [ { "type": "official", "cite": "160 N.C. App. 57" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "12 S.E. 281", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1890, "pin_cites": [ { "page": "284" }, { "page": "284" } ], "opinion_index": 0 }, { "cite": "107 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272762 ], "weight": 2, "year": 1890, "pin_cites": [ { "page": "148" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/107/0139-01" ] }, { "cite": "160 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "886" }, { "page": "886" }, { "page": "886" } ], "opinion_index": 0 }, { "cite": "273 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575798 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "588" }, { "page": "588" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0581-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 146-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 146", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 146-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "368 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "200" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523753 ], "year": 1988, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0250-01" ] }, { "cite": "393 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309098, 5308369, 5308874, 5304632 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0601-02", "/nc/326/0601-03", "/nc/326/0601-04", "/nc/326/0601-01" ] }, { "cite": "388 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "233" }, { "page": "234" }, { "page": "234" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 215", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520148 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "224" }, { "page": "225-26" }, { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0215-01" ] } ], "analysis": { "cardinality": 531, "char_count": 10195, "ocr_confidence": 0.733, "pagerank": { "raw": 5.35832044980501e-08, "percentile": 0.3365331337850199 }, "sha256": "2d42d31d65f9c1f4d12cae4a24d145339fe5836e7404158ad1b8e10765bd1dcb", "simhash": "1:9e499c28c4d76c61", "word_count": 1647 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and McCULLOUGH concur." ], "parties": [ "NILES D. SLAVIN and wife, CAROL J. SLAVIN; BENNET L. HUSSEY and wife, LILLIE E. HUSSEY; ROBERT LEE MANN; SANDRA H. WILSON and husband, THOMAS A. WILSON; RALPH W. PETERS, JR. and wife, JOYCE PETERS; DAVID A. MILLER and wife, LORI H. MILLER; JUDY C. MARTIN and husband, WILCO A. MARTIN; JOSEPH BEAM, JR. and wife, JUDITH ANN BEAM; W.H. ODELL; MICHAEL J. GOODMAN and wife, MARIAN GOODMAN; DONALD PROTO and wife, ELIZABETH W. PROTO; DOZIER PROPERTIES, INC., a North Carolina Corporation; PETER R. DeMAO; LARRY V. HOGAN and wife, MARGARET F. HOGAN; F. EUGENE LILLEY and wife, MARJORIE E. LILLEY; GEORGE P. WHITE, a single person; WOODROW W. BLACKBURN and wife, BETTY N. BLACKBURN; BRANTLEY E. CLIFTON and wife, MEREDITH B. CLIFTON; DOROTHY O. FLOYD, a widow; JOHN HAIRSTON, JR. and wife, DELANEY G. HAIRSTON; ERVIN L. McCRAY and wife, LINDA L. McCRAY; and JOHN C. WILKS, a single person, Plaintiffs v. TOWN OF OAK ISLAND, a North Carolina Municipal Corporation and Body Politic, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nPlaintiffs are owners of oceanfront property located within the municipal boundaries of the Town of Oak Island (\u201cdefendant\u201d or \u201cTown\u201d). In May 2001, the United States Army Corps of Engineers (\u201cCorps\u201d) completed a beach renourishment project, the Turtle Habitat Restoration Project, within the limits of the Town. The project was conducted with the consent of defendant and was designed to restore a sea turtle nesting habitat that had been damaged by erosion. A second beach renourishment project, the Wilmington Harbor Project, was undertaken in the Town by the Corps but not yet completed by the time this action commenced. Both projects entailed the placement of new sand on the seaward side of the former mean high water mark, which represents the seaward boundary of plaintiffs\u2019 properties. The placement of new sand in this manner pushed the mean high water mark seaward, creating a new dry sand beach and dune between plaintiffs\u2019 property and the ocean.\nIn order to protect the new sand dune and the turtle habitat, defendant adopted the Beach Access Plan (\u201cAccess Plan\u201d) at issue. The Access Plan provides for the construction of fencing on and along the length of the renourished beach. Pursuant to the Access Plan, plaintiffs may only access the ocean via designated public access points. Prior to implementation of the Access Plan and construction of the fencing, each plaintiff enjoyed direct access to the ocean from his or her property.\nPlaintiffs filed suit against defendant alleging that plaintiffs had a right of direct access to the ocean and that defendant\u2019s Access Plan constituted a taking of that right in violation of the federal and state constitutions. On 13 February 2002, after careful consideration of the pleadings and supporting materials, the trial court ordered that summary judgment be entered in favor of defendant. On 19 February 2002, plaintiffs gave notice of appeal to this Court.\nOn appeal, plaintiffs contend summary judgment in defendant\u2019s favor was improper as a matter of law on the following issues: 1) plaintiffs\u2019 assertion that defendant lacked standing and authority to adopt the Access Plan; and 2) plaintiffs\u2019 assertion that they each possess a vested appurtenant littoral right of direct access to the ocean, which defendant cannot lawfully limit without compensation. We disagree with plaintiff\u2019s contentions and affirm the trial court\u2019s order.\nSummary judgment is appropriate if there is no genuine issue as to any material fact and any party is entitled to a judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001); Weeks v. N.C. Dept. of Nat. Resources and Comm. Development, 97 N.C. App. 215, 224, 388 S.E.2d 228, 233, disc. review denied, 326 N.C. 601, 393 S.E.2d 890 (1990). The purpose of summary judgment \u201cis to foreclose the need for a trial when, based upon the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are to be decided.\u201d Robertson v. Hartman, 90 N.C. App. 250, 252, 368 S.E.2d 199, 200 (1988). Plaintiffs concede that there are no disputed issues of fact in the present case.\nWe first consider plaintiffs\u2019 contention that defendant was not entitled to summary judgment as a matter of law because defendant lacked the authority to enact the Access Plan or to construct a fence upon the renourished beach. Plaintiffs argue that, pursuant to the provisions of the State Lands Act, codified at N.C. Gen. Stat. \u00a7 146-1 et seq., the State of North Carolina and its Department of Administration have exclusive authority to regulate the renourished beach. Plaintiffs further contend that, because the Department of Administration has not delegated that authority to defendant, defendant\u2019s Access Plan was unlawfully implemented. After careful consideration of the State Lands Act, we conclude that the Act does not support plaintiffs\u2019 contention, and that the Town does as a matter of law have authority to enact the Access Plan.\nN.C. Gen. Stat. \u00a7 146~6(f) provides that . . 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.\u201d N.C. Gen. Stat. \u00a7 146-6(f) (2001). Because the renourishment projects undertaken by the Town were publicly financed sand placement projects, title to the newly-created beach is vested in the State. However, we believe that nothing in the Act should be read as limiting the authority of a town or city to enact regulations in order to protect a public beach located within its municipal limits. Plaintiffs\u2019 reading of the Act is inconsistent with our Legislature\u2019s grant of authority to municipalities to exercise police power within their boundaries. See N.C. Gen. Stat. \u00a7 160A-174(a) (2001) (\u201cA city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.\u201d). Accordingly, we reject plaintiffs\u2019 contention that defendant as a matter of law lacked authority to adopt and implement its Access Plan or to construct a fence upon the renourished beach.\nPlaintiffs also contend that summary judgment for defendant was improper because plaintiffs have a vested appurtenant littoral right of direct access to the ocean, which defendant cannot lawfully limit without compensating plaintiffs. Plaintiffs insist that they are entitled to compensation because defendant\u2019s Access Plan unlawfully limits plaintiffs\u2019 right of access by requiring plaintiffs to access the ocean via designated access points, rather than directly from their respective properties.\nWhile we agree that North Carolina law recognizes a littoral property owner\u2019s right of access to adjacent water, plaintiffs misinterpret the nature of that right. See Capune v. Robbins, 273 N.C. 581, 588, 160 S.E.2d 881, 886 (1968); Bond v. Wool, 107 N.C. 139, 148, 12 S.E. 281, 284 (1890). A littoral property owner\u2019s right of access to the ocean is a qualified one, Capune, 273 N.C. at 588, 160 S.E.2d at 886, and is subject to reasonable regulation, Weeks, 97 N.C. App. at 225-26, 388 S.E.2d at 234. Plaintiffs, however, do not argue that the Access Plan is an unreasonable regulation of their littoral property rights. Rather, plaintiffs insist that defendant may not limit their right of access to the ocean at all without compensating plaintiffs.\nIn Capune, our Supreme Court stated that a littoral property owner\u2019s right of access to adjacent water is \u201c \u2018subject to such general rules and regulations as the Legislature, in the exercise of its powers, may prescribe for the protection of the public rights in rivers or navigable waters.\u2019 \u201d Capune, 273 N.C. at 588, 160 S.E.2d at 886 (quoting Bond, 107 N.C. at 148, 12 S.E. at 284). In Weeks, this Court held that appurtenant littoral rights are \u201csubordinate to public trust protections.\u201d Weeks, 97 N.C. App. at 226, 388 S.E.2d at 234. Thus, it is well-established that the littoral right of access to ad-jacent water is a qualified right.\nPlaintiffs\u2019 contention that the Town may not, without compensation, in any way limit their right of access to the ocean is inconsistent with the qualified nature of that right. Accordingly, we conclude that defendant is entitled to judgment as a matter of law, and the trial court\u2019s order granting summary judgment in favor of defendant was proper.\nAffirmed.\nJudges TIMMONS-GOODSON and McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Hedrick, Blackwell & Griner, L.L.P., by G. Grady Richardson, Jr., for plaintiffs appellants.", "Roger Lee Edwards, P.A., by Roger Lee Edwards, and Crossley, McIntosh, Prior & Collier, by Clay A. Collier, for defendant appellee." ], "corrections": "", "head_matter": "NILES D. SLAVIN and wife, CAROL J. SLAVIN; BENNET L. HUSSEY and wife, LILLIE E. HUSSEY; ROBERT LEE MANN; SANDRA H. WILSON and husband, THOMAS A. WILSON; RALPH W. PETERS, JR. and wife, JOYCE PETERS; DAVID A. MILLER and wife, LORI H. MILLER; JUDY C. MARTIN and husband, WILCO A. MARTIN; JOSEPH BEAM, JR. and wife, JUDITH ANN BEAM; W.H. ODELL; MICHAEL J. GOODMAN and wife, MARIAN GOODMAN; DONALD PROTO and wife, ELIZABETH W. PROTO; DOZIER PROPERTIES, INC., a North Carolina Corporation; PETER R. DeMAO; LARRY V. HOGAN and wife, MARGARET F. HOGAN; F. EUGENE LILLEY and wife, MARJORIE E. LILLEY; GEORGE P. WHITE, a single person; WOODROW W. BLACKBURN and wife, BETTY N. BLACKBURN; BRANTLEY E. CLIFTON and wife, MEREDITH B. CLIFTON; DOROTHY O. FLOYD, a widow; JOHN HAIRSTON, JR. and wife, DELANEY G. HAIRSTON; ERVIN L. McCRAY and wife, LINDA L. McCRAY; and JOHN C. WILKS, a single person, Plaintiffs v. TOWN OF OAK ISLAND, a North Carolina Municipal Corporation and Body Politic, Defendant\nNo. COA02-671\n(Filed 19 August 2003)\n1. Cities and Towns; Waters and Adjoining Lands\u2014 taking\u2014 beach access\nThe trial court did not err in a takings case by granting summary judgment in favor of defendant town even though plaintiff oceanfront property owners contend defendant lacked authority to enact the pertinent access plan or to construct a fence upon the renourished beach in order to protect the sand dime and the turtle habitat which effectively limited each plaintiff\u2019s direct access to the ocean from his property, because nothing in the State Lands Act limits the authority of a town or city to enact regulations in order to protect a public beach located within its municipal limits.\n2. Cities and Towns; Waters and Adjoining Lands\u2014 taking\u2014 beach access \u2014 vested appurtenant littoral right of direct access \u2014 compensation\nThe trial court did not err by granting summary judgment in favor of defendant town even though plaintiff oceanfront property owners contend plaintiffs had a vested appurtenant littoral right of direct access to the ocean which defendant cannot lawfully limit without compensating plaintiffs, because a littoral property owner\u2019s right of access to the ocean is a qualified one that is subject to reasonable regulation.\nAppeal by plaintiffs from judgment entered 13 February 2002 by Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 3 June 2003.\nHedrick, Blackwell & Griner, L.L.P., by G. Grady Richardson, Jr., for plaintiffs appellants.\nRoger Lee Edwards, P.A., by Roger Lee Edwards, and Crossley, McIntosh, Prior & Collier, by Clay A. Collier, for defendant appellee." }, "file_name": "0057-01", "first_page_order": 87, "last_page_order": 91 }