North Carolina Land Use: What is the Public Trust Doctrine and Why Does it Matters for Beach-Front Property

Here in North Carolina, there is a legal doctrine called the "Public Trust Doctrine." The legal doctrine protects what are generally called "public trust lands" and protects the public's use of such lands. Ocean-front beaches are a prime example of public trust lands in North Carolina.

The public trust doctrine is recognized by North Carolina courts and is codified in North Carolina statutes. For example, North Carolina General Statutes, §1-45.1, recognizes the existence of "public trust rights" and defines those to be: "... those rights held in trust by the State for the use and benefit of the people of the State in common." The statute further defines these public rights to include (without being limited to):

"... the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches."

See also North Carolina General Statute, § 113A-134.1(b), which states that "[t]he General Assembly finds that the beaches and coastal waters are resources of statewide significance and have been customarily freely used and enjoyed by people throughout the State."

It is important to note and understand that public trust lands do NOT need to be owned by the State of North Carolina. The lands remain in public trust even if the land has been sold by the State to private parties. Thus, the public retains rights with respect to the public trust lands. Further, the public rights “run with the land” and continue to exist as the public trust land in question is transferred from one owner to another as the years pass. The only exception is if, when transferred by the North Carolina General Assembly, there is an explicit relinquishment of the public trust rights. But courts disfavor this exception and have held that any relinquishment of public trust rights by the General Assembly must be made in the "the clearest and most express terms."

With respect to public trust lands, there is always a boundary where the public trust rights end and the purely private land begins. Sometimes, identifying the boundary can be complicated and may depend on the local conditions. For public beaches, the oceanward areas are generally within the public trust area and the boundary on the landward side tends to be along the first line of stable, natural vegetation, along the toe of the frontal dune or along what is called "the storm trash line." What is clear is that, as currently defined, at least some portions of privately-owned dry sand beaches are subject to public trust rights. Courts have held that the General Assembly has the legislative power to define and modify the geographic limits of public trust rights.

For landowners with property that is encumbered by public trust rights, the public trust doctrine matters for several reasons.

First, public trust rights will restrict what private landowners can do with a portion of their property. For example, with ocean-front property, landowners cannot obstruct the public's right to use the beach. Further, under some circumstances, the landowner might be required to allow the public access to the beach by allowing the public to cross over their non-public trust lands.

Second, lands encumbered by public trust rights are subject to local and state laws and regulations that can be more expansive and restrictive than laws/regulations that might apply to purely private land. The reason is that, as described above, ownership of the land in question is a hybrid of private/public ownership. The physical land is owned privately, but public rights attach to it. Thus, entities representing the public -- like local town councils or state agencies -- have more legislative/regulatory power over that portion of the land to which public rights attach.

Third, with respect to eminent domain laws, it will be exceedingly difficult to succeed with any sort of inverse condemnation claim concerning laws or regulations that apply to public trust land. Inverse condemnation is a legal claim that can be made for compensation when a government entity (or some private third party) takes private land for public use. In the case of land encumbered by public rights, the land is not entirely private, and the public already has rights with respect to use of the land. Thus, two necessary conditions for making an inverse condemnation claim are absent.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning, and condemnation legal matters in federal court, in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.