Fabrikant v. Currituck County
| Decision Date | 18 October 2005 |
| Docket Number | No. COA04-250.,COA04-250. |
| Citation | 621 S.E.2d 19 |
| Court | North Carolina Supreme Court |
| Parties | Marvin FABRIKANT and wife, Patricia A. Fabrikant, Arthur C. Smith, III, and MPF Investment Co., L.P., and Arthur C. Smith, III, Trustee, Arthur C. Smith III Revocable Trust, Plaintiffs, v. CURRITUCK COUNTY, a North Carolina body politic and corporate, Corolla Associates, a Virginia limited partnership, Whalehead Associates, a Virginia limited partnership, H I S Whalehead, a Virginia limited partnership, Gerald J. Friedman, Whalehead Properties, a Virginia joint venture, Nancy Friedman, Estate of Samuel Sandler, deceased, Harry Sandler, State of North Carolina, North Carolina Department of Environment and Natural Resources, Coastal Resources Commission, Division of Coastal Management, and Donna D. Moffitt, as Director of the Division of Coastal Management, Defendants. |
Huff, Poole & Mahoney, PC, by J. Bryan Plumlee, Virginia Beach, VA; Carter, Archie & Hassell LLP, by Sid Hassell, Washington; and David J. Bederman, Atlanta, GA, pro hac vice, for plaintiffs-appellants.
Attorney General Roy C. Cooper, by Special Deputy Attorney General Ronald M. Marquette, Special Deputy Attorney General J. Allen Jernigan, Assistant Attorney General Marc D. Bernstein, and Assistant Attorney General Meredith Jo Alcoke, for the State.
Plaintiffs, who own oceanfront property in Currituck County, brought suit against various defendants, including the State of North Carolina, the North Carolina Department of Environment and Natural Resources ("DENR"), the Coastal Resources Commission, the Division of Coastal Management, and the Director of the Division of Coastal Management (collectively "the State defendants"). With respect to the State defendants, plaintiffs have sought (1) a declaratory judgment that they have exclusive ownership of the portion of the beach between the high tide mark and the vegetation line, identified as "the dry sand beach," (2) to quiet title in that portion of the beach, and (3) injunctive relief. Because we hold that the quiet title and injunctive relief claims are barred by sovereign immunity and that there is no justiciable controversy with respect to the declaratory judgment claim, we affirm the trial court's orders dismissing plaintiffs' claims against the State defendants.
The beach community known as Whalehead Club is located in Currituck County near Corolla, North Carolina. Plaintiffs each own property at Whalehead. At the heart of plaintiffs' claims are their contentions regarding ownership of various parts of the beach that Whalehead borders. The beach adjacent to the Atlantic Ocean along North Carolina's Outer Banks is generally identified as having three "zones." These zones are (1) the "wet sand beach," which is the area "subject to regular flooding by tides," N.C. Gen.Stat. § 77-20(e) (2003); (2) the "dry sand beach," which is the area "subject to occasional flooding by tides, including wind tides other than those resulting from a hurricane or tropical storm," id.; and (3) the area landward of the dry sand beach. The debate in this case concerns the dry sand beach.1
On 19 September 1997, several property owners in Whalehead filed a lawsuit in the United States District Court for the Eastern District of North Carolina against various defendants, among them Currituck County, the North Carolina Department of Transportation ("DOT"), and the North Carolina Board of Transportation ("BOT"). Although the record before this Court does not contain the federal court complaint, the record indicates the complaint alleged that the Whalehead beach was private property and that the County and DOT injured plaintiffs by encouraging public access to the ocean and beach areas.
DOT and BOT filed a motion to dismiss, based on (1) lack of diversity of citizenship, (2) failure to join the State of North Carolina and DENR as necessary parties, and (3) immunity under the Eleventh Amendment to the United States Constitution. In support of the motion, DOT and BOT filed the affidavit of Roger N. Schecter, then Director of the Division of Coastal Management, a division within DENR.
Following the filing of defendants' motion to dismiss, plaintiffs voluntarily dismissed the federal lawsuit and filed this action in Currituck County Superior Court on 19 June 1998. Plaintiffs included as defendants the developer of Whalehead, general partners of the developer, the original owners of the undeveloped Outer Banks property that became Whalehead, and Currituck County. Plaintiffs also sued the State of North Carolina, DOT, BOT, DENR, the Coastal Resources Commission, the Division of Coastal Management, and Roger N. Schecter "as Director of the Division of Coastal Management." The complaint identifies the latter defendants collectively as the
Plaintiffs' complaint alleges that plaintiffs purchased their property based on representations indicating that the Whalehead beach would be private, secluded, and remote. Plaintiffs also allege that they were told that the property lines for the oceanfront lots stretched to the mean high tide line. Restrictive covenants provided that the lots in the section where plaintiffs purchased their property could only be used for residential purposes.
According to the complaint, the original developers conveyed to Currituck County several oceanfront lots in the "residential purposes only" section. After the County paved those lots, the developer assured Whalehead residents that the paved lots were for the exclusive use of Whalehead residents and their guests. In 1995, however, Currituck County erected signs that indicated the paved lots were for public parking.
In addition, the complaint alleges that access ramps or walkways stretching from a Whalehead road to the vegetation line on the beach were constructed on 10-foot-wide strips of land that were owned by the developer. Signs also appeared at intervals along the easternmost north-south road in Whalehead identifying these ramps and walkways as providing "Public Beach Access." Plaintiffs allege "upon information and belief" that the ramps or walkways and the signs were constructed by the State defendants, the developer, or the County and that they were funded by the State.
With respect to the effect of the provision of public access, the complaint alleges:
104. As a result of the pedestrian boardwalks, including their failure to extend to the mean high-tide line, persons using the boardwalks have a greater incentive to stray across the adjacent private beachfront lots to reach the beach area between the mean high-tide line and the mean low-tide line.
105. Members of the general public, on a non-continuing and recurring basis, and mostly during the tourist season, use the [access areas] without authorization to trespass on the private property of the Plaintiffs owning beachfront lots and other beachfront lot owners, particularly on the Dry Sand Areas of such private property at which the pedestrian boardwalks terminate.
Plaintiffs describe various negative conduct resulting from the public's use of the dry sand beach in front of their homes, including litter, noise, bonfires, relief of bodily functions, requests for use of the bathroom and the telephone, and unauthorized use of plaintiffs' outdoor showers.
Based on the above allegations, plaintiffs asserted 22 claims for relief, including claims for breach of the restrictive covenants, deeds, and contracts; fraud; unfair and deceptive trade practices; and various claims relating to the maintenance of dumpsters, streets, and water supply facilities. With respect to "the State defendants," the complaint included four claims for relief. Plaintiffs first sought a declaratory judgment that the State of North Carolina and/or the public have no rights as to the dry sand beach, which plaintiffs contend is under their private ownership. Second, plaintiffs asserted a cause of action to quiet title in the dry sand beach. Third, plaintiffs requested an injunction restraining the State defendants from "interfering with these Plaintiffs' exclusive use and enjoyment of their real property, specifically the Dry Sand Areas." In the event title to the dry sand beach was not found to reside in plaintiffs, plaintiffs alternatively alleged that such a ruling would constitute a "taking" entitling plaintiffs to compensation for the land itself and for the accompanying diminution in property values.
Plaintiffs subsequently obtained leave to amend their complaint to add a fifth claim against the State defendants asserting the unconstitutionality of N.C. Gen.Stat. §§ 77-20(d) & (e) (2003), two provisions adopted after the filing of the federal action that codify the "customary free use and enjoyment of the ocean beaches" enjoyed by the people of the State of North Carolina "from time immemorial." N.C. Gen.Stat. § 77-20(d). In both the State defendants' answer to the original complaint and their answer to the amendment, they included motions to dismiss.
On 28 April 1999, upon motion by DENR, the Division of Coastal Management, and the Coastal Resources Commission, the trial court dismissed the quiet title, injunctive relief, and taking claims of those plaintiffs who did not own oceanfront property. Further, the court ruled that Plaintif...
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