In South Nags Head, along a u-shaped road now buried beneath sand, there stands a row of decrepit houses in the Atlantic Ocean. One leans far to the west, like a gnarled oak fleeing the ocean's spray. Another is being repaired and one has already been removed. All were severely damaged when ocean waters overwashed E Seagull Dr during a winter storm that hit the area around Veteran's Day in 2009 and have since become a source of extended legal controversy. The houses that remain and the struggles that followed are a clear illustration of the challenges that accompany living on shifting sands.
Condemned houses on E Seagull Dr in South Nags Head, NC. December 2014.
Satellite images of E Seagull Dr, March 2011 on left and March 2013 on right.
After the storm waters receded from E Seagull Dr, the legal battle began. The utility connections were damaged and due to the migration of sand the structures sat in the "wet zone" of the public beach. A portion of the damaged houses were declared a public nuisance and condemned by the Town of Nags Head. The owners were given notice to either tear down or remove the structures, which according to the Town, now sat within public trust property and blocked movement of both visitors and emergency response vehicles alike, effectively splitting the public beach, northern and southern. Considered "wash ins" and condemned, the Town would not issue any additional building permits for the structures, preventing owners from making any repairs. The condition of the houses then deteriorated greatly as they were exposed to wind, waves, rain, and looters. The Town wanted the structures removed and owners of the houses wanted the right to repair their property and make them again inhabitable. The case was argued in Dare County Superior Court in December of 2010 and initially the verdict sided with the Town of Nags Head.
“Agreeing with Nags Head that the property was a public nuisance in land held in the public trust, the court ordered the defendant to remove the structure and gave them 20 days to do so, after which the town of Nags Head could enter the property and take the necessary steps.”
Condemned houses on E Seagull Dr in South Nags Head, NC. December 2014.
The defendant, Cherry Inc., owner of one of the houses, appealed the decision. The Court of Appeals disagreed with the previous ruling and found that local governments in NC had no power of enforcement under State public trust law and that the claims against the defendant should be dismissed. The decision shows that the Town of Nags Head had no legal basis for condemnation as only the State of NC could enforce the regulations of the State's public trusts. A door now opened, potentially allowing for repair of the deteriorating structures and possible reclamation of lost rental income. For a rundown of the legal proceedings see Public Trust and Private Rights—Local Case Poses Difficult Questions in the North Beach Sun. The decision was troubling for those in coastal communities that wanted to protect their most vital asset: the public beach.
“We believe the N.C. Supreme Court made a mistake in not hearing our case,” said Nags Head Mayor Bob Oakes.
“They essentially said the State of North Carolina is the only entity that can take action to protect the public’s rights in the public trust, which includes our public ocean beaches.”
The court decisions were in opposition to the manner most coastal communities viewed their powers within public trust beaches.
“The problem is in our back yard, and we feel that the local government is the right place to address the issue,” said Oakes.
“The decision means that we have to rely on the state to keep our beaches clean and usable by the public.”
Condemned houses on E Seagull Dr in South Nags Head, NC. December 2014.
Roc Sansotta, manager and part-owner of six of the houses, also took legal action against the Town.
“They’ve now lost their power because of Cherry Inc.,” Sansotta said of town officials.
He said he has spent more than $1 million in legal fees over the past two years going through federal and state courts, and has lost about $250,000 a year in rentals since the 2009 storm. The Pacific Legal Foundation, a law firm that takes on property rights and government-intrusion issues, now plans to help.”
To further complicate matters, while litigation was ongoing, a long-awaited beach nourishment project again shifted the sands.
“... in early 2011 the Town obtained permission from the U.S. Army Corps of Engineers to undertake a massive $36 million beach renourishment project. By August 2011, the part of the renourishment project near the six cottages was completed, resulting in 200 feet of new beach in front of the cottages. Based on the new beach, the Town withdrew the nuisance declaration based on §16-31(6)(c) in September 2011; the Town claimed that the cottages were still in the public trust but that they “no longer impermissibly or unacceptably restrict or obstruct the use of and access to the ocean beach. J.A. 784. The Town also invited the Owners to apply for permits to repair the cottages. The nuisance declaration based on §16-31(6)(b), however, remained in effect. ”
Condemned houses on E Seagull Dr in South Nags Head, NC. December 2014.
A few days shy of Veteran's Day in November 2014, Sansotta had claimed victory. The U.S. District Court for eastern North Carolina decided that the structures can stay on the beach and be repaired. He placed American flags on the houses as a symbol of the legal struggle that he had endured and said he had plans to repair them in time for the upcoming rental season. He referred to the houses as his "troops," though neighbors employed other comparisons. In the harsh environment, the flags were soon tattered and threadbare.
“Neighbors across the road who call the area “ghetto beach” wanted the homes removed, said Larry Allen, an Arizona resident who owns a home west of the Sansotta houses.
The structures pose a danger and block access to the ocean, he said.
”People are upset.”
Previously condemned house undergoing repairs on E Seagull Dr in South Nags Head, NC. December 2014.
Despite legal victories and the possibility of repairs, the majority the remaining E. Seagull Dr houses will soon be gone. Any sanctuary gained by previous beach nourishment programs was evidently washed away by the time these images were captured in December, 2014. On March 27, 2015, the Pacific Legal Foundation, who represented Sansotta in the case posted:
“We are thrilled to report that former PLF client, Roc Sansotta, has reached a settlement agreement with the Town of Nags Head, North Carolina, to the tune of $1.5 million! Under the agreement, the Town will essentially buy Sansotta’s beachfront property and cottages, and tear them down to make the land part of the public beach.”
With sea levels rising (from 4.8 to 11.6 inches near Nags Head over the next 30 years, according to a recent report from the Coastal Resources Commission’s advisory science panel) and no signs of development slowing, this case could portend the future of the Outer Banks, one where both flood waters and legal documents are surging.
During some busy tourist season yet to come, will beach-goers be aware they spread their towels where a row of houses once stood? Will they remember the six year long legal battle that cost millions of dollars, both public and private, over a patch of shifting sand? Or will they just be in awe of the natural wonder that lies before them? My hope for this series is to depict a landscape that isn't quite so natural after all; a strip of sand that is shaped as much by state and federal governmental agencies, departments of transportation, rental rates, bridge builders, real estate agents, courts, commerce, and human interests as it is by the wind and waves. See more images Upon Sand.