Freeman Park: a public park on private property?

Updated: Nov. 11, 2020 at 11:34 AM EST
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WILMINGTON, N.C. (WECT) - For more than two years, the Town of Carolina Beach has been embroiled in four lawsuits regarding private property located at the north end of the island, more commonly known as Freeman Park.

It’s a popular destination as one of the few places in the region you can drive on the beach (and consume alcohol). But, even more importantly for the Town of Carolina Beach, it is a cash cow.

In fact, revenues from Freeman Park are second only to those of property taxes in Carolina Beach, which explains why the town has put such an effort into fighting the lawsuits.

In Fiscal Year 2018-19, Freeman Park brought in $1.9 million—while sales taxes only brought in $1.7 million. The revenues can be attributed to the sales of season passes, day passes, and camping permits.

As of July 2020, the town had spent more than $200,000 of taxpayer money in court fighting the lawsuits, but when it comes to the history of Freeman Park, there is more than meets the eye.

“In 2018, Town Council voted to hire Special Counsel Stephen Coggins with Rountree and Losee LLP. To date, the Town has paid $217,302.17 to Rountree Losee LLP. Town Attorney Noel Fox serves as a liaison and assists Mr. Coggins as required by providing updates to Town Council and attends mediation. Ms. Fox bills the Town on a monthly basis and the only item I see that separately lists out this matter is a 13-hour mediation for a total cost of $2,600,” according to Town Clerk Kim Ward.

Despite being such a moneymaker for Carolina Beach, the property at Freeman Park, for the most part, is not owned by the Town, nor is it in town limits.

Several different LLCs own land at Freeman Park.
Several different LLCs own land at Freeman Park.(Carolina Beach)

Instead, it is predominantly owned by private landowners and is in unincorporated New Hanover County.

However, an interlocal agreement with the county gives the town extraterritorial jurisdiction of the land, but that does not mean the town owns it.

Figuring out who owns what at Freeman Park can be complicated—and things might not be as clear as the town would have people believe. The town does own a small portion of the park, mainly the entrance area and the Hatteras ramp—that is the wooden ramp that people drive across to access the beach.

In North Carolina, although private property lines might be drawn out onto the beaches, there are no ‘private beaches’ in the state.

State Statute has placed the dry sand beaches in what is known as the Public Trust.

According to the law, “The public having made frequent, uninterrupted, and unobstructed use of the full width and breadth of the ocean beaches of this State from time immemorial, this section shall not be construed to impair the right of the people to the customary free use and enjoyment of the ocean beaches, which rights remain reserved to the people of this State …”

Essentially, this means that the public has free access to the dry sand beaches across the state. So where does the ‘dry sand’ start and end?

It begins at the toe of the sand dunes and ends at the mean high-water mark or the average tide line.

All that property is in the public trust, but that does not make it town property.

The property and the park itself are named after the Freeman family; most of the land was initially owned by Bruce Freeman.

Over the years, it was divided among Freeman family heirs but in the mid-2000s, other private parties began purchasing the land from the Freeman family members. Now the bulk of the land is owned by several different LLCs or Limited Liability Corporations.

Those LLCs include Carolina Freeman LLC, Freeman Beach LLC, B&F Enterprises of Calabash LLC. These corporations were on their way to buying all the property at Freeman Park; however, one parcel at the park was purchased by the town for $500,000 in 2018.

A previous request from landowners in 2016 asked the town to take their private property rights into consideration and stop allowing camping uses on their land.

“The campgrounds have caused an increasing amount of vehicular traffic on the privately-owned areas of the beach, leading to the destruction of some of the dunes as well as other areas which must be preserved in order to maintain the beauty and viability of the beach as a haven for tourists,” a letter from property owners' attorney Clifton Hester read.

“Because of this, the owners are requesting that the town take immediate action to close these campgrounds to the extent that they are located above the mean high water mark and to otherwise provide police protection to prevent further use by the public which may accelerate the erosion and diminution of the beach property.”

The camping did not stop and in 2018 things got even more complicated when landowners took matters into their own hands.

On Valentine’s Day of 2018 the town sent out a notification closing the park to all visitors after property owners installed rope fencing and plantings of sea grass in an attempt to protect their property.

The private property owners installed fence posts and planted sea oats in 2018 with the hopes...
The private property owners installed fence posts and planted sea oats in 2018 with the hopes of reclaiming some of their land that has been lost.(WECT)

The town claimed the installation of the fencing and the sea grasses was done without proper permission from the state and eventually, the Division of Coastal Management determined the posts and fencing were unauthorized development.

After the rope fencing and sea oats were removed (the sea oats were destroyed by vehicles after the town removed the fencing), the town then decided it wanted the land the LLCs had acquired over the years for itself.

Had the property owners been successful in keeping their plantings, Freeman Park would have been significantly reduced in size since the new plantings would have established a new dune line.

Freeman Park closed past Zone 1 to prevent overcrowding.
Freeman Park closed past Zone 1 to prevent overcrowding.(Town of Carolina Beach)

Freeman Park has faced more than just lawsuits over the past few years, erosion has forced the town to close a significant portion of the park and restricted camping as well. Season pass holders have been unable to access the beach at different points over the past two seasons due to high tides and overcrowding issues, and the town even stopped selling day passes to the park.

Just one of the several lawsuits the town is involved in.
Just one of the several lawsuits the town is involved in.(Michael Praats)

The initial lawsuits were prompted when the Town of Carolina Beach sent out notices of condemnation to property owners at Freeman Park. Their purpose was to inform them that the town hoped to take eight parcels of land for itself either through a private sale or eminent domain.

State law permits the following uses for the use of eminent domain:

  • Widening or extending roadways
  • Enlarging or establishing public enterprises
  • Establishing, enlarging, or improving parks and recreational facilities
  • Establishing hospital facilities
  • Constructing or improving municipal buildings such as fire departments and city halls
  • Establishing drainage programs
  • Establishing access for the public to public trust beaches and appurtenant parking areas

Eminent domain is a tool that governments can use in North Carolina to acquire private land for itself, however, it does require ‘just compensation’ as well as a reason why a government can take private property.

While the city spent $500,000 of taxpayer money on one smaller parcel of land at Freeman Park, it attempted to offer landowners just a fraction of the prices paid by the property owners it wanted to seize the land from.

Freeman Beach LLC, which owns the largest piece of property of 170-acres, was offered $42,400 as just compensation.

Other offers to the other LLCs include, $16,200 to DRDK, LLC, $12,800 to Carolina Freeman LLC, and $3,300 B&F Enterprises LLC.

This total came out to $74,700 for hundreds of acres—while the town willingly paid $500,000 for just 13.17 acres of neighboring land. That property remains undeveloped, and is only accessible through the neighboring land or the beach.

Eventually, the town rescinded its attempt to take the land through eminent domain, but that has not stopped the landowners from counter-suing the town for its actions.

Inverse condemnation action was taken against the town that challenges the rights the town has to establish a for-profit park on their private property.

“This inverse condemnation action against the town concerns the limits of what constitutes ‘public trust rights’ held by the state for the benefit of the public, and whether a local municipality may rely on the ‘public trust doctrine’ to conduct a commercial, for-profit operation on privately owned beachfront property that allows the public to use the privately owned property for activities such as overnight camping, campfire, off-road four wheeling, and alcohol consumption,” according to the counter-claims made by the LLCs.

Court documents, and the previous letter, show that property owners are also alleging the town has established campsites on their land.

“While the campsites established by the Town are located mostly on the Defendants dry sand property, the campsites at times encroach into and damage the dunes and vegetation lining the ocean beach and thus encroach into the defendant’s private uplands,” according to court documents.

The lawsuits have been ongoing for years and will continue into 2021 at least. Recent filings in court show a trial date set for May of 2021, however, that date could be pushed back once again.

The town alleges it has done nothing wrong while property owners make several claims against the town and is requesting the court prohibit the town from operating Freeman Park on their private property.

The landowners claim the town has violated state law as well as the U.S. Constitution by operating the park on their land.

“The defendant’s entitlement to just compensation for the taking of its property is a fundamental right guaranteed by both the North Carolina Consitution and the United States Constitution. The Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Section 19 of N.C. Constitution require that just compensation be paid, including all costs of defense,” according to the counter-claims.

The landowners also opposed the town using their property, albeit temporarily, for the purpose of beach nourishment projects.

In August of 2018 they proposed a solution that would have seen an easement swap. The landowners would have granted the town an easement to lay the pipes needed to move sand across the beach; in exchange, all the property owners asked for was an easement that would allow family members and heirs to the Freeman family access to a planned memorial on the private land.

“Their proposal is to have an exchange of easements. They will grant the Town the easements needed for beach re-nourishment in exchange for the Town conveying a specific dedicated easement for the Freeman Beach Associates rather than the general access that they currently have,” the town clerk said. “When the purchase was made from the Freeman heirs, Freeman Beach, LLC. promised to construct a monument on the property in honor of the family. Their proposal suggests that this easement would allow access for the family to visit the monument,” she concluded.

While the Town Council considered the offer, no agreement was reached.

This is part one of a three-part series looking into Freeman Park, how it came to be, and questions regarding the legal ownership of the land. In part two of this series we will explore the history of Freeman Park, and how it became the moneymaker for the town that it is today—and why it has been a controversial park since its official inception.

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