Hovey v. Sand Dollar Shores Homeowner's Ass'n

• Court: Court of Appeals of North Carolina
• Decided: April 6, 2021
• Docket: 20-423
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-91

No. COA20-423

Filed 6 April 2021

Dare County, No. 19-CVS-496

ROBERT E. HOVEY and wife, TANYA L. HOVEY, Plaintiffs,

v.

SAND DOLLAR SHORES HOMEOWNER’S ASSOCIATION, INC., and the TOWN OF DUCK, Defendants.

Appeal by Defendant Sand Dollar Shores Homeowner’s Association, Inc., from

judgment entered 18 February 2020 by Judge L. Lamont Wiggins in Dare County

Superior Court. Heard in the Court of Appeals 10 February 2021.

The Wills Law Group, by Gregory E. Wills, for Plaintiffs-Appellees.

Fox Rothschild LLP, by Troy D. Shelton, Elizabeth Brooks Scherer, and Robert H. Edmunds, Jr., for Defendant-Appellant Sand Dollar Shores Homeowner’s Association, Inc.

No brief filed by Defendant Town of Duck.

INMAN, Judge.

¶1 The Town of Duck is a seaside resort community that provides no public beach

access. All oceanfront lots there are privately owned and have been since before Duck

was incorporated in 2002. Although members of the public are entitled to walk on

the beach, wade in the ocean, and otherwise use the natural resources abutting the HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

Opinion of the Court

boundaries of these properties, the land between the beach and public streets and

highways belongs to private landowners. This appeal arises from a complaint by two

Duck residents who do not own oceanfront property and who assert a public right of

access to a pedestrian walkway that provides convenient beach access from a public

street to members of Sand Dollar Shores Homeowner’s Association (“Defendant”).

¶2 Defendant appeals from a summary judgment order declaring that the

walkway maintained by and titled to Defendant has been dedicated to the public.

After careful review, we hold the trial court erred in granting summary judgment for

Robert and Tanya Hovey (“Plaintiffs”), reverse the trial court’s order, and remand

with instruction to enter summary judgment for Defendant.

I. FACTUAL AND PROCEDURAL HISTORY

¶3 In 1981, Sand Dollar Shores, Inc., a real estate development company, recorded

a plat for the Sand Dollar Shores subdivision with the Dare County Register of

Deeds.1 The subdivision, per the plat map, consists of 42 residential lots along

Seabreeze Drive, a road that extends from State Route 1200 and terminates in a

double cul-de-sac near the Atlantic Ocean.

1 The Town of Duck was incorporated after recordation of the plat, and Sand Dollar

Shores now resides within Duck’s city limits. HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

¶4 In addition to displaying the lots and Seabreeze Drive, the plat map shows an

eight-foot-wide pedestrian beach access easement (the “Easement”) running from the

double cul-de-sac to the beach between lots 2 and 3:

The plat map includes a “certificate of dedication,” which provides that the developer

“hereby . . . dedicate[s] all roads, alleys, walks, parks, and other sites to public or

private use as noted.” The certification further states that “the streets and roads in HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

this subdivision are dedicated to public use.” Nothing on the face of the plat map

notes the Easement as for either public or private use.

¶5 The plat map was approved for recordation by Dare County, which, per a

certificate of approval and acceptance of dedication on the face of the plat map,

“accepted the dedication of roads, easements, right-of-way, public parks, and other

sites for public purposes as shown hereon.” Two days later, the developer recorded

restrictive covenants for Sand Dollar Shores. The covenants stated that the

Easement is for the sole use of homeowners within Sand Dollar Shores and their

guests and that use of the Easement by anyone else “is prohibited” and may result in

prosecution for trespassing on Sand Dollar Shores Property.

¶6 Defendant was established in 1990, nine years after the plat map and

covenants were recorded, and a few months later the developer deeded the beach

access to Defendant. Following the transfer, Defendant assumed the sole and

exclusive responsibility for the ownership and maintenance of the Easement and has

continued to maintain it ever since.

¶7 Plaintiffs purchased a house across the highway from Sand Dollar Shores in

2002 and began renting out the house on a weekly basis during the summer months.

They also started a beach equipment rental business to serve their residential renters HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

and other vacationers. Plaintiffs and their customers used the Sand Dollar Shores

beach access to reach the beach.

¶8 In 2015, Defendant amended its restrictive covenants to provide, among other

things, that the Easement was dedicated for the use of Defendant’s members only.

Plaintiffs continued to use the Easement during this time, and, in April 2016,

Defendant’s attorney wrote a letter to Plaintiffs stating that they would be held liable

if they and their tenants did not stop using the Easement. Following the receipt of

this letter, Plaintiffs’ residential rental management company cancelled its property

management contract with Plaintiffs and refused to include Plaintiffs’ rental home

in the rental management program for the 2016 summer rental season.

¶9 Later in 2016, Plaintiffs filed declaratory judgment actions against Defendant

and the Town of Duck, requesting that the trial court declare the Easement had been

dedicated to the public. The Town of Duck did not file a responsive pleading, but the

city manager filed an affidavit attesting that the Town had “no intention of arresting

the Plaintiffs for use of any of the Accesses absent a Court decision settling any civil

disputes arising between the Plaintiffs and the underlying owners of the Accesses.”

Plaintiffs voluntarily dismissed their action without prejudice and continued using

the Easement. HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

¶ 10 On 29 May 2019, Robert Hovey was arrested for trespassing on Defendant’s

property. In response to the arrest, Plaintiffs again filed suit requesting that the trial

court declare the Easement dedicated to the public. The Town, as before, took no

position on the litigation but agreed to be bound by any judgment. Plaintiffs moved

for summary judgment a few months after Defendant filed its answer.

¶ 11 The parties entered into several stipulations prior to the summary judgment

hearing and agreed “that no issues of material fact exist between the parties to this

lawsuit, and that the action before the [trial court] exists only as a matter of law.” At

the summary judgment hearing itself, Plaintiffs argued that the plat map alone

established a public dedication of the Easement.

¶ 12 Defendant disagreed and requested summary judgment be entered in its favor,

asserting, among other arguments, that the face of the plat map failed to disclose an

unambiguous intention to dedicate the Easement to the public. Following the

hearing, the trial court granted the Plaintiffs’ motion for summary judgment.

Defendant filed timely notice of appeal.

II. ANALYSIS

¶ 13 Defendant argues that a public dedication of private property requires a clear

and unmistakable intent on the part of the landowner to dedicate the land to public

use. Because the plat map here states an intention only to dedicate “all roads, alleys, HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

walks, parks, and other sites to public or private use as noted,” and the document

contains no note dedicating the Easement as for public use, Defendant contends the

evidence fails to establish a clear intention to dedicate the Easement for public use.

Plaintiffs disagree, asserting that the plat map language reflects a public dedication.

For the reasons explained below, we hold that the plat map fails to show an

unambiguous intention to dedicate the Easement to public use. We reverse the trial

court’s judgment and remand with instructions to enter summary judgment for

Defendant.

1. Standard of Review

¶ 14 A motion for summary judgment shall be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that any party is

entitled to a judgement as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019).

We review an order granting or denying summary judgment de novo. Craig v. New

Hanover Cnty. Bd. Of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009).

2. The Law of Public Dedication

¶ 15 “Dedication is a form of transfer whereby an individual grants to the public

rights of use in his or her lands.” Kraft v. Town of Mt. Olive, 183 N.C. App. 415, 418,

645 S.E.2d 132, 135 (2007) (citing Spaugh v. Charlotte, 239 N.C. 149, 159, 79 S.E.2d HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

748, 756 (1954)). Transfer by dedication requires an intent by the landowner to share

use of the land with the public, “though such intention may be shown by deed, by

words, or by acts.” Milliken v. Denny, 141 N.C. 224, 230, 53 S.E. 867, 869 (1906).

“The evidence in support of the intent of an owner to dedicate an easement should be

‘ “clear and unmistakable.” ’ ” Wright v. Town of Matthews, 177 N.C. App. 1, 11, 627

S.E.2d 650, 658 (2006) (quoting Green v. Barbee, 238 N.C. 77, 81, 76 S.E.2d 307, 310

(1953)). In other words:

The intention of the owner to set apart land for the use of the public is the foundation and very life of every dedication. . . . The acts and declarations of the landowner indicating the intent to dedicate his land to the public use, must be unmistakable in their purpose and decisive in their character to have that effect.

Nicholas v. Salisbury Hardware & Furniture Co., 248 N.C. 462, 468, 103 S.E.2d 837,

842 (1958) (citations and quotation marks omitted).

¶ 16 Intention alone is not adequate to accomplish a dedication; a public authority

must also accept the offer. See, e.g., Tower Development Partners v. Zell, 120 N.C.

App. 136, 140, 461 S.E.2d 17, 20 (1995) (“Because North Carolina does not have

statutory guidelines for dedicating streets to the public, the common law principles HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

of offer and acceptance apply.” (citation omitted)).2 Acceptance, too, may be express

or implied. Kraft, 183 N.C. App. at 420, 645 S.E.2d at 137. A public authority

expressly accepts a dedication by proper adoption or execution of an official act,

including “a formal ratification, resolution, or order by proper officials, the adoption

of an ordinance, a town council’s vote of approval, or the signing of a written

instrument by proper authorities.” Bumgarner v. Reneau, 105 N.C. App. 362, 366-

67, 413 S.E. 2d 565, 569, aff’d as modified, 332 N.C. 624, 422 S.E.2d 686 (1992).

Acceptance may be implied when the offered land is “generally used by the public

and . . . the proper authorities have asserted control [over it] for the period of twenty

years or more.” Scott v. Shackelford, 241 N.C. 738, 743, 86 S.E.2d 453, 457 (1955)

2 Plaintiffs contend that N.C. Gen. Stat. § 136-102.6 (2019) abrogated the common law

rules governing dedications for subdivision plats recorded after 1975. Tower Development Partners, which held the common law of dedications governed a subdivision plat recorded in 1986, precludes Plaintiffs’ argument. 120 N.C. App. at 140, 461 S.E.2d at 20. Also, the statute expressly recognizes that public dedications are offered and accepted, incorporating the common law rather than abrogating it. See N.C. Gen. Stat. § 136-102.6(b) (“Any street designated on the plat or map as public shall be conclusively presumed to be an offer of dedication to the public of such street.” (emphasis added)); N.C. Gen. Stat. § 136-102.6(d) (“The certificate of approval shall not be deemed an acceptance of the dedication of the streets on the subdivision plat or map.” (emphasis added)). The General Assembly has made it clear that the statute is intended “to insure that new subdivision streets described herein to be dedicated to the public will comply with the State Standards for placing subdivision streets on the State highway system for maintenance, or that full and accurate disclosure of the responsibility for construction and maintenance of private streets be made.” N.C. Gen. Stat. § 136-102.6(i) (emphasis added). The statute has no bearing on the public dedication of a pedestrian beach access easement, which is beyond the scope of highway construction standards. HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

(citation and quotation marks omitted).

¶ 17 The burden of proving both an offer and acceptance of dedication falls on the

party propounding the dedication’s existence. See, e.g., Town of Lumberton v. Branch,

180 N.C. 249, 250, 104 S.E. 460, 461 (1920) (holding, in a town’s action asserting

possession by public dedication, that “[t]he burden was on the plaintiff to show that

the land in controversy, and now in possession of the defendant, is a public street of

Lumberton.”). This is not a low burden, as “[d]edication is an exceptional and peculiar

mode of passing title to an interest in land. . . . It is not a trivial thing to take

another’s land, and for this reason the courts will not lightly declare a dedication for

public use.” Nicholas, 248 N.C. at 470, 103 S.E.2d at 843 (citation and quotation

marks omitted).

3. Plaintiffs Have Not Shown Unmistakable Intent to Dedicate the Easement

¶ 18 Under the applicable law described above, we hold that Plaintiffs have not

shown a clear and unmistakable intent by the developers of Sand Dollar Shores to

publicly dedicate the Easement. The dedication on the face of the plat provides that

the developer “dedicate[d] all roads, alleys, walks, parks, and other sites to public or

private use as noted,” (emphasis added), meaning dedications of any walks “for

public . . . use” and “private use” would be “noted” on the plat. Only the “streets and

roads” are noted as for public use. Given the qualified language of the dedication that HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

only items noted “for public . . . use” would be dedicated to the public, and in light of

the dedication of the streets in such a manner, the failure to designate the Easement

as public creates, at best, an ambiguity as to whether the Easement was offered for

dedication. Cf. Ocean Hill Joint Venture v. Currituck Cnty. Bd. of Comm’rs., 178 N.C.

App. 182, 184, 630 S.E.2d 714, 716 (2006) (describing a failure to designate a road as

either public or private under dedication language practically identical to that at

issue here as an “ambiguity”). Because an offer of public dedication must be shown

by evidence indicating a “clear and unmistakable” intent, Wright, 177 N.C. App. at

11, 627 S.E.2d at 658 (citation and quotation marks omitted), and no such

unambiguous intention is present on the face of the Sand Dollar Shores plat, the trial

court erred in entering summary judgment for Plaintiffs and their claim should have

been dismissed.

¶ 19 Plaintiffs asserted at oral argument that the language noting the streets as

dedicated to the public was not actually a notation attributable to the developer

because it was found below and apart from the signed dedication. Plaintiffs contend

that the language instead simply served to put the public on notice that the streets

would be governed by particular statutes referenced in the note. Plaintiffs did not

offer any legal support for this proposition, and we can find no authority suggesting

the placement of such a note above, below, or beside the dedication signed by the HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

party seeking to record the plat has any bearing on its application or interpretation.

As for whether the note was simply intended to provide notice, all portions of the plat

serve that purpose, the very reason for recordation of land rights. See, e.g., Hill v.

Pinelawn Memorial Park, Inc., 304 N.C. 159, 163, 282 S.E.2d 779, 782 (1981) (“The

purpose of [the recordation] statute is to enable intending purchasers and

encumbrancers to rely with safety on the public record concerning the status of land

titles.” (citations omitted)).

¶ 20 Plaintiffs also argue that other decisions by this Court establish that once a

subdivision plat has been dedicated by the developer and approved by a governing

body, any easements shown on that plat are dedicated to the public irrespective of

any qualifying language conscribing the dedication to sites noted as public. The

decisions cited by Plaintiffs are distinguishable, and none of them support Plaintiffs’

argument.

¶ 21 Plaintiffs rely on this Court’s holdings in Ocean Hill, Sampson v. City of

Greensboro, 35 N.C. App. 148, 240 S.E.2d 502 (1978), Smith v. County of Durham,

214 N.C. App. 423, 714 S.E.2d 849 (2011), and Emanuelson v. Gibbs, 49 N.C. App.

417, 271 S.E.2d 557 (1980). A comparison of each of these cases to the one before us

undermines Plaintiffs’ argument.

¶ 22 Plaintiffs rely most heavily on Ocean Hill. In that case, a subdivision plat was HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

recorded in the late 1970s with language—virtually identical to that at issue here—

dedicating “all streets, alleys, walks, parks, and other open space to public or private

use as noted.” Ocean Hill, 178 N.C. App. at 184, 630 S.E.2d at 716. And, like the

Easement in this case, the plat did not specify whether the streets shown on the map

were public or private, resulting in an “ambiguity in the plat whether [the

subdivision’s] roads were designated for public or private use.” Id. at 184, 630 S.E.2d

at 716.

¶ 23 The homeowners association grew concerned about the public use of the road;

however, instead of filing a declaratory judgment action contesting any public

dedication, the association conceded that the roads had been dedicated to the public

and successfully petitioned the County Commissioners to close the roads to the public

pursuant to a public road closure statute. Id. Interested members of the public—

including the original developers who recorded the subdivision plat—petitioned for

trial de novo in superior court to reverse the Board's decision and reopen the roads.

Id. One of the developers, as well as that developer’s attorney, testified that it was

always the developers’ intention that the roads be public and that the conveyance of

the roads to the association in 1993 was not intended to revoke public access. Id. at

185, 630 S.E.2d at 716. A jury returned a verdict against the association. Id. at 185,

630 S.E.2d at 717. The association unsuccessfully appealed to this Court on grounds HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

independent of any issues pertinent to dedication. At no point did the association

rescind their concession that the roads had been publicly dedicated, and this Court

did not address that issue on appeal. Id.

¶ 24 Ocean Hill does not support Plaintiffs’ position because the question of whether

the plat contained an offer to dedicate the roads was not raised below or on appeal

and was, in fact, conceded by the party seeking to limit access. Id. at 184, 630 S.E.2d

at 716. While it is true that the dedication language in Ocean Hill and the failure to

note the roads as public or private is factually similar to this case, it does not show

the necessary unmistakable intention of dedication—indeed, this Court described the

dedication and failure to denote the roads in Ocean Hill as creating an “ambiguity in

the plat whether [the subdivision’s] roads were designated for public or private use.”

Id. (emphasis added). Further, there was ample evidence in that case to resolve the

ambiguity in favor of dedication, including direct testimony from one of the developers

and his attorney that it was always the developers’ intent to dedicate the roads to the

public. Plaintiffs here have offered no such additional evidence,3 and an ambiguous

plat cannot alone support the requisite clear and unmistakable intent necessary for

3 The only additional evidence presented to the trial court regarding the developer’s

intent were the restrictive covenants filed by the developer two days after the plat and restricting use of the beach access to the homeowners of Sand Dollar Shores and their guests. HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

public dedication. Cf. Wright, 177 N.C. App. at 11, 627 S.E.2d at 658-59 (holding a

deed that “failed to specify whether [a] right-of-way was for purposes of a public or

private street” was insufficient to show clear and unmistakable intent to dedicate the

street to the public).

¶ 25 Plaintiffs’ reliance on Sampson is likewise misplaced. In that case, which

involved whether a sewer easement had been dedicated to the public, the landowners

did not argue the plat map and dedication language failed to dedicate the sewer

easement; the dispute instead centered on whether the landowners, who claimed they

did not know how the plat and dedication they signed came to be recorded, could plead

ignorance to renege on the dedication. Sampson, 35 N.C. App. at 148-49, 240 S.E.2d

at 502-503. Sampson simply stands for the proposition that a landowner who signs

and records a plat map that dedicates an easement to the public cannot undo the

dedication by claiming ignorance of the dedication language or recordation. Id.

Defendant in this case occupies a different position from the landowners in Sampson,

as it specifically asserts the Sand Dollar Shores plat map does not show, on its face,

a public dedication of the Easement. Sampson’s holding has no bearing on this case.

¶ 26 Smith is similarly distinguishable. Just as in Ocean Hill and Sampson, the

uncontroverted evidence in Smith showed a public dedication had occurred upon

recordation and the landowners did not contest whether the facts showed a HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

dedication. 214 N.C. App. at 432-33, 714 S.E.2d at 855-56. And, as with Ocean Hill

and Sampson, nothing in Smith supports the conclusion that a recorded plat

containing a dedication results in a dedication of any listed easements as a matter of

law, regardless of the actual language and express scope of dedication language.

¶ 27 A fourth case cited by Plaintiffs, Emanuelson, is also inapplicable. There, a

dispute arose between a developer and a nearby landowner over the public or private

nature of a road on a subdivision plat map. 49 N.C. App. at 419, 271 S.E.2d at 558.

The developer conceded that it had offered the road for public dedication, but argued

that it had not been properly accepted by a public authority. Id. at 419, 271 S.E.2d

at 559. That case thus did not address the issue here: whether the language on the

Sand Dollar Shores plat map shows an offer to dedicate the Easement.

¶ 28 Plaintiffs’ remaining arguments seek to interpret and apply various statutes

that have no bearing on whether the developer of Sand Dollar Shores intended to

dedicate the Easement to the public, namely: (1) N.C. Gen. Stat. § 136-102.6,

addressed supra; (2) the legislative findings section of the Coastal Area Management

Act, N.C. Gen. Stat. § 113A-134.1(b) (2019), which simply discloses the legislature’s

desire to establish public accessways to the State’s beaches; and (3) N.C. Gen. Stat.

§§ 136-66.1, 160A-299, and 160A-301 (2019), which allow towns to spend funds on

road improvements, close public roads and walks, and regulate parking. None of HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

those statutes abrogates the common law of dedication. Plaintiffs also rely on Dare

County ordinances in effect at the time the plat map was recorded to assert the

Easement was dedicated to the public as a matter of law upon recordation. But, as

conceded at oral argument, those ordinances expressly provided that both public and

private easements could be recorded. See Dare County Code § 18-2 (1975) (defining

“Easement” as “[a] grant by the property owner for use by the public or any person of

a strip of land for specified purposes” (emphasis added)).

¶ 29 We acknowledge that our holding means that the Town of Duck, as an

incorporated municipality, lacks public beach access. The subdivision, Easement,

and Defendant association predate the incorporation of the Town. The Town has not

sought to establish a public beach access and generally maintains that all of the beach

access locations within the town limits of Duck are located on private property. This

Court must uphold these private property rights under the law. Though we hold their

suit must be dismissed, Plaintiffs are not barred from the beach. They may, as

suggested by counsel, negotiate for access with Defendant or, failing that, drive to

nearby municipalities or any unincorporated areas in the county to the north and

south that maintain public beach accesses.

III. CONCLUSION

¶ 30 For the foregoing reasons, we reverse the judgment of the trial court and HOVEY V. SAND DOLLAR SHORES HOMEOWNER’S ASSOC., INC.

remand with instructions to enter summary judgment for Defendant.

REVERSED AND REMANDED.

Judges TYSON and HAMPSON concur.