Town of Emerald Isle By and Through Smith v. State
| Decision Date | 07 October 1987 |
| Docket Number | No. 111A86,111A86 |
| Citation | 360 S.E.2d 756,320 N.C. 640 |
| Parties | TOWN OF EMERALD ISLE, By and Through its Mayor, Richard SMITH, and its duly elected Board of Commissioners, and Richard Smith, A.B. Crew, Beulah Pase, and Walt Gaskins, Individually v. The STATE of North Carolina, James B. Hunt, Governor, Rufus Edmisten, Attorney General, James A. Summers, Secretary of the Department of Natural Resources and Community Development, and Jane S. Patterson, Secretary of the Department of Administration. |
| Court | North Carolina Supreme Court |
Stanley, Simpson & McNeill by Richard L. Stanley, Beaufort, for plaintiffs-appellees.
Lacy H. Thornburg, Atty. Gen. by Daniel F. McLawhorn, Asst. Atty. Gen., Raleigh, for defendants-appellants.
The question in this case is whether Chapter 539 of the 1983 Session Laws of North Carolina entitled, "An Act to Provide for Reasonable Beach Access Within the Town of Emerald Isle," violates Article XIV, section 3; Article I, section 32; or Article I, section 19 of the North Carolina Constitution. We conclude that it does not.
The Town of Emerald Isle, one of the plaintiffs in this case, is a municipality located on Bogue Banks, Carteret County, North Carolina, and has approximately eight miles of frontage on the Atlantic Ocean and Bogue Sound.
The owners of property located within the Town of Emerald Isle, at the western end and in close proximity to Bogue Inlet, developed their respective properties, each consisting of a large tract of land fronting approximately 1100 feet on the Atlantic Ocean and running from the Atlantic Ocean to Bogue Sound on the north into Blocks 51, 52 and 53. The subdividers caused subdivision plats for Blocks 51, 52 and 53 to be recorded in the Carteret County Registry. These subdivision plats indicate individual subdivision lots, streets, roads and alleys within Blocks 51, 52 and 53. Inlet Drive is one of the subdivision streets shown on the recorded plats of Blocks 52 and 53, Town of Emerald Isle. The approval and recordation of the subdivision plats for Blocks 51, 52 and 53 constituted an offer for dedication of these streets, roads, and alleys, including Inlet Drive, to the Town of Emerald Isle and to the general public as public streets, roads and alleys. Inlet Drive, as shown on the recorded plats of Blocks 52 and 53, has been accepted, repaired and maintained as a town street as part of the municipal street system pursuant to N.C.G.S. § 136-66.1(2). In addition, Inlet Drive is among the town streets, roads and alleys for which the Town of Emerald Isle receives Powell Bill Funding for municipal roads and streets.
In 1982, the Town obtained a permit from the State and constructed a vehicular ramp over the sand dunes and accreted lands at the western end of Inlet Drive at a point where the paved surface of Inlet Drive had eroded away. The vehicular ramp was constructed on accreted lands within the extended bounds of the right-of-way of Inlet Drive. After completion of the ramp, vehicles could travel westerly over Inlet Drive and the vehicular ramp to the beach areas within Blocks 53 and 54. Pedestrians were also allowed access to the beaches through the right-of-way.
The Town's Beach Access Ordinance regulates the entrance and travel of vehicles on the beaches. Under its terms, vehicles are allowed to gain access to the Emerald Isle beaches through certain designated access points, and once access is gained vehicular travel is limited to certain marked streets and areas of the beach.
On 16 June 1983, the North Carolina General Assembly enacted Chapter 539 of the 1983 Session Laws. Section 1 of the act provides as follows:
The Department of Natural Resources and Community Development, in cooperation with the Town of Emerald Isle, is hereby directed to acquire real property by purchase or condemnation, make improvement for and maintain facilities for the provision of public pedestrian beach access in the vicinity of Bogue Inlet. The town shall not be required to expend local funds to acquire real property, but shall be responsible for maintaining the facility. Public beach access facilities in the vicinity of Bogue Inlet shall include parking areas, pedestrian walkways, and rest room facilities, and may include any other public beach access support facilities. Insofar as is feasible, said facility shall include all lands inletward of the dune adjacent to the terminus of Inlet Drive and the adjacent portion of Bogue Court, as well as such adjacent properties necessary to provide adequate parking and support facilities. Notwithstanding any other law or authority to the contrary, beach access facilities in the vicinity of Bogue Inlet after the installation of said public pedestrian beach access facility shall not include facilities for vehicular access to the beach, including but not limited to the use of the Inlet Drive right-of-way for vehicular access; provided that such prohibition shall not apply until the pedestrian beach access facility is opened; after the installation of said public pedestrian beach access facility, motor vehicles are hereby prohibited from being operated on the ocean beaches and dunes adjacent to and within Blocks 51, 52, 53 and 54 of Emerald Isle; provided that this vehicular access prohibition shall not apply to reasonable access by public service, police, fire, rescue or other emergency vehicles.
In essence, the act directs the Department of Natural Resources, in cooperation with the Town of Emerald Isle, to acquire real property (in the vicinity of Bogue Inlet) which surrounds the vehicle access ramp. The Department is also directed to build facilities for public pedestrian beach access to the property. Once the facilities are completed, the act prohibits motor vehicular traffic in the four blocks adjacent to the facilities and limits the use of the existing vehicle access ramp to public service and emergency vehicles and pedestrians.
Plaintiff Town of Emerald Isle, along with the four individual plaintiffs, property owners and taxpayers of the Town of Emerald Isle, two of whom possess beach access permits issued by the Town authorizing vehicular access to the ocean and inlet beaches, brought this declaratory judgment action to challenge the constitutionality of 1983 N.C.Sess.Laws, ch. 539, § 1. Plaintiffs and defendants stipulated facts essentially as set out above and both moved for summary judgment.
The trial court granted plaintiffs' motion for summary judgment on the following grounds:
(1) Chapter 539 violates the North Carolina Constitution, Article II, section 24(1)(c) prohibition against local acts which authorize "the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys."
(2) Chapter 539 is a special or local act concerning subject matter directed or authorized to be accomplished by general laws, in violation of the North Carolina Constitution, Article XIV, section 3.
(3) Chapter 539 grants an exclusive emolument or privilege to property owners along the beach where vehicles are to be prohibited, in violation of the North Carolina Constitution, Article I, section 32.
(4) Chapter 539 takes the vested property right of plaintiff Town in the dedicated right-of-way of Inlet Drive without due process of law as required by the North Carolina Constitution, Article I, section 19.
The court held that the parts of Chapter 539 which it held unconstitutional could be severed from the rest of the Chapter. The court also ordered the defendants to comply with those parts of the Chapter which it had not held to be unconstitutional. Defendants appealed.
On appeal, the Court of Appeals affirmed the trial court's determination that Chapter 539 was a local act in violation of Article II, section 24 of the North Carolina Constitution. The Court of Appeals, however, reversed that portion of the trial court's decision allowing severance of the unconstitutional sections of the act and held that the act could not be severed. Thus, having determined that the act violated Article II, section 24 of the North Carolina Constitution, the Court of Appeals passed no judgment on the trial court's ruling that the act violates other provisions of the North Carolina Constitution.
Noting that the act expressly permits the street to continue to be used as a way by the general public, he was of the opinion that Chapter 539 is a reasonable regulation restricting the use of, but not discontinuing a street within the meaning of the constitutional prohibition.
Concurrent with its notice of appeal of right pursuant to N.C.G.S. § 7A-30(2), defendants petitioned this Court for discretionary review of the constitutional challenges to Chapter 539 which the Court of Appeals did not address. Defendants' petition was allowed on 6 May 1986.
We first address the issue of plaintiffs' standing to bring this action for declaratory judgment under N.C.G.S. § 1-254 (1983). The statute provides as follows:
Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof. (1931, c. 102, s. 2)
An action may not be maintained under the Declaratory Judgment Act to determine rights, status, or other relations unless the action involves a present actual controversy between the parties. Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413 (1958). Plaintiff is not required to allege or prove that a traditional "cause...
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