Supreme Court: Local governments may not regulate public trust waters and area adjacent thereto | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    The N. C. Supreme Court this week handed down a decision that could have significant impact on coastal North Carolina counties. Essentially what the court did, in refusing to hear an appeal by the Town of Nags Head of a Court of Appeals (COA) decision in February, was to prohibit local governments (cities, town, counties etc.) from exercising authority over public trust areas, such as shorelines and public waters. The Supreme Court let stand a COA ruling that Nags Head had no authority to order the removal of beach cottages damaged by storms that erosion had made a part of the public trust area up to the mean high water mark.

    Nags Head tried to use local ordinances, including its zoning authority, to order the cottages removed after storms washed away sand on their lots. The erosion moved the line marking "public trust areas" inland. The Town wanted the cottages removed from what had become "the beach." The owners resisted.
src="https://www.beaufortcountynow.com/uploads/travel_images/wake_county/wake_county_081912_6.28_pm_raleigh_nc_supreme_court_630_pxlw.jpg"> North Carolina Supreme Court in Raleigh, NC: Above.     photo by Stan Deatherage
    But the ruling has significant implications beyond damaged beach cottages. It could mean that local governments cannot regulate other aspects of public trust waters. For example, the City of Washington contends it has the authority to regulate boat moorings in its designated "harbor area." The ruling would imply that no such authority exists because the harbor is public trust waters.

    The ruling could also have implications for local ordinances that involve construction of structures over public trust waters, such as restaurants, shops, boathouses and other structures.

    The Court of Appeals had ruled that only the state can regulate public trust areas. The Supreme Court's ruling upholds that decision.

    Of course one of the significant aspects of such a ruling is related to who writes the regulations dealing with public trust areas. In recent years a number of local governments have taken to trying to fashion their own unique regulations. This, of course, leads to patchwork patterns of what is permitted and what is not. As a result of this ruling if a local community wants to regulate something they would have to petition the state to adopt the regulations. Such rules would presumably then be applicable to all communities. This obviously changes the "politics" of how such regulations are developed. It is more difficult to get state-level regulations adopted than local ordinances.

    Click here for a more detailed discussion of the issue in Nags Head that led to the decision and some of the consternation of local officials about their power being restricted.

    Of course the issue is exacerbated by Sandy.

    Click here to read the Court of Appeals decision.