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From condo owners to the town, how Carolina Beach claims ownership of Freeman Park’s entrance

Updated: Nov. 25, 2020 at 3:36 PM EST
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WILMINGTON, N.C. (WECT) - The Town of Carolina Beach has brought in millions of dollars’ worth of revenue from Freeman Park without owning the vast majority of the land at the North End. But the land the town does claim ownership over has been questioned in the past and was, at one point, listed as ‘disputed’ by the county.

The Town of Carolina Beach controls access to Freeman Park for vehicles, it sells passes for visitors and residents, and allows camping on the beach – for a fee.

Yet, the land at the park is not located in the town limits, and is, for the most part, not owned by the town. In North Carolina beaches are considered public and can’t be restricted.

So what gives the town the right to charge people for these things?

The town claims ownership to the first 1,000 feet of property at the park which allows it to control the access point – and charge people to drive across its land to access the beach.

Once on the beach the park is actually operated on what is known as public trust land, that is, the dry sand beach.

It took a lot of moving parts for the town to get control over the property, including an agreement with the county, as well an agreement with the Condo Association at Spinnaker Pointe, as well as the homeowners association of Oceana, which, at one point, claimed that land for its residents.

The park itself is located in the unincorporated area of New Hanover County, but in 2004, the county agreed to let the town have rights over that property.

This agreement is known as an interlocal agreement, and it granted the town extraterritorial jurisdiction of the land.

The county claimed the agreement would be a good step to help protect endangered species at the north end while allowing recreational activities.

“The New Hanover County Board of Commissioners and the Town Council for Carolina Beach have entered into an InterLocal Agreement that will allow the Town to implement a Management Plan and adopt and enforce appropriate ordinances for the north end of Carolina Beach. The Agreement, Management Plan, and ordinances are attached. This is an excellent first step in the control of human activities to protect endangered species, while allowing traditional recreation activities to continue,” according to the agreement.

But, the agreement did much more than simply allow the town to protect endangered species – it opened the door for the town to make millions of dollars’ – and gave the town carte blanche permission to enforce any ordinances it wanted to at Freeman Park.

“The Town shall also have the right to, enforce its ordinance number 04 -561, and any other provision which it -may enact to apply to the subject area. So long as this agreement is in effect, no additional ratification by the County shall be necessary for the ordinances the Town enacts, for the subject area, to be effective in that area; this agreement shall serve as a blanket ratification of any such ordinance,” the agreement reads.

However, simply having an agreement with the county was just one piece of the puzzle for the Town of Carolina Beach – it needed to own the land in order to make money off of it.

Spinnaker Pointe sits at the north end of Carolina Beach, across a marshy area from Freeman Park. In fact, a raised walkway leads from Freeman Park to Oceana and Spinnaker Pointe.

Property records show the land the town claims as its own was owned by individual condo owners at Spinnaker Pointe.

The property in question is 48-acres of beachfront property as well as land in the marsh-like area to the west of Freeman Park in between the neighborhood and the park.

The land, according to property records, was considered to be ‘common area’ that each owner of a unit in Spinnaker Pointe was granted fractional ownership of.

According to the Declaration Creating Unit Ownership of Spinnaker Pointe, a document created in 1985, each property owner was granted a small percentage of ownership over all common areas of the condominium complex – including the 48-acres of oceanfront land.

In 1987 that document was added onto to include, “Each unit shall be conveyed and treated as an individual real property capable of independent use and fee simple ownership, and the owner of each unit shall also own, as an appurtenance to the ownership of each said unit, and undivided interest in the common areas and facilities of Spinnaker Pointe Phase I and Phase II and future phases, if any.”

Yet, in 2002, the town and the presidents of Spinnaker Pointe and Oceana entered into an agreement giving the town control over that land – but the deeds do not show any of the condo owners signing off on the agreement.

From 2002—2004, Bob McKoy served as the Agent and Property Manager for Spinnaker Pointe Unit Owners Association, INC., and helped negotiate water and sewer easements with the town. McKoy provided an affidavit of a timeline of events regarding easements granted to the town, which first started in August of 2020.

“On November 15, 2002 an agreement was made with the Town for Spinnaker Pointe and Oceana to release their ownership claims to the 48 acres of beachfront property so the town could control the access to the North End (Freeman Park) and charge for the access to the North End,” according to McKoy’s affidavit.

However, McKoy does not explain why the neighborhoods agreed to give over their rights to that land. Just two days prior to the agreement, Town Council entered into a closed session to discuss the agreement.

Meeting minutes are vague and provide little details as to why the agreement was being considered.

Meeting minutes from a 2002 meeting of Carolina Beach's Town Council.
Meeting minutes from a 2002 meeting of Carolina Beach's Town Council.(Carolina Beach)

“Attorney briefed council on request from Spinnaker Point HOA and Oceana HOA requesting easement and acknowledgement of rights as to 48 acres in Northern Section of Carolina Beach. After discussion, questions and answers, council advised attorney, we would consider requested action when we went back into public session,” according to meeting records.

Town officials have declined to offer any comment on the topic of Freeman Park as a whole, and meeting minutes from previous discussions on the topics remain vague or protected by closed session laws.

The 2004 agreement does acknowledge the rights of property owners at Oceana and Spinnaker Pointe to use and enjoy the property as a common area to their developments. They were considered ‘perpetual rights which will be honored and respected by the Town of Carolina Beach in perpetuity.’

However, in that same agreement the neighborhoods also agreed to ‘…acknowledge the rights of the Town of Carolina Beach to exercise dominion and control over said property.’

Still, it appears that the town entered into these agreements with just a few people at each neighborhood – not with the individual owners.

This is not the first time there has been questions as to the validity of the town’s ownership claims. When the town voted to approve Freeman Park, then property owners as well as residents spoke out against the plans and created the Citizens for Conservation of the North End. In doing so, they found the county had actually listed the ownership claims of the land as disputed.

“In CCNE’s investigation of Ms. Williams’ title, validity of the Town of Carolina Beach title to the first 1,000 feet of the North End become unclear. New Hanover County tax records listed the town’s ownership as ‘disputed,” according to meeting minutes from 2004.

While the ownership of the land remains unclear, there are other issues surrounding the town’s control over the park, like, the installation of sand fencing and the creation of an artificial sand dune.

The entrance to the park and the Hatteras ramp, that is, the wooden slats that visitors drive over appear to cut through a dune to access the beach.

This is significant because in North Carolina, the beaches are kept in what is known as the public trust, meaning, they are accessible to the public regardless of landownership.

The public trust property starts at the toe of the dunes and ends at the mean-high water mark.

If the Hatteras ramp was not flanked on the seaward side by a dune, that would make the property part of the public trust area --- and that is exactly what it appeared to be prior to 2004.

Satellite images from the early 2000s show a vastly different story than those of today.

Prior to the town getting control of the land there was no discernible dune system at the...
Prior to the town getting control of the land there was no discernible dune system at the entrance to the park.(Google Earth)
Images show the dunes that were created to the East of the entrance of the Park.
Images show the dunes that were created to the East of the entrance of the Park.(Google Earth)

The entrance ramp at the park was nonexistent, instead, it was dry sand, a dune line can be seen adjacent to a house on the beach, however, there was no pronounced dune system at that time.

Now, a clearly delineated sand dune can be discerned.

In order to create a sand dune system like this, the state requires property owners obtain a CAMA permit, that is, a Costal Area Management Act permit. These permits regulate and restrict actions that can be taken on beaches. In fact, when property owners tried to install their own beach grass and rope fencing to protect the dunes, the town claimed they had no permission from the state, and removed the fencing and killed the beach grasses.

In 2005, a CAMA permit was issued to the Town of Carolina Beach to install sand fencing along 6,641 feet of the beach and dune line – but the town only claims ownership of the first 1,000 feet of land along the beach. The rest of the land was, at the time, owned by private landowners including heirs to the Freeman Family.

[Land disputes, environmental concerns, and money: How Freeman Park came to be]

On the CAMA Permit request, only two property owners were listed as notified, despite the fact that others owned the land the town would later install the fencing on.

In the CAMA permit request, the town marked ‘other’ when it came to ownership status of the land it wanted to fence off, but documents provided by the town as well as the state did not include any explanation as to why the town would seek permission from the state to fence off land it does not own.

When asked for documents and drawings showing the exact location the town wanted to fence off, town staff said they were not in possession of those records.

When reached for comment the state Division of Coastal Management provided answers to the following questions:

Q: Do you have any of the drawings or aerial photos that show where the town had planned to install their fencing?

A: “We are unable to locate any drawings associated with this 2005 permit and recommend checking with the Town of Carolina Beach for any available images.”

Q: I was also looking at the documents that show the town selected ‘other’ for ownership status. Do you have the reasoning that the town gave the state for this permit since they do not in fact own the bulk of the land at Freeman Park.

A: “Staff who issued this 2005 permit are no longer with the Division of Coastal Management and there are no additional notes regarding this notation.”

Q: I am also curious as to why the state would allow the town to install sand fencing along the dunes of privately owned property? Is this a common practice? The town only claims ownership of the first 1,000 feet of property at the park.

A: “The Division is aware of property ownership disputes regarding this property. However, coastal property disputes are relatively common, and the Division of Coastal Management does not resolve these disputes through the issuance of permits. A CAMA permit only indicates that a project meets the various standards set out in rules of the Coastal Resources Commission. Property disputes often need to be resolved through the General Court of Justice.”

Q: The CAMA permit issued for sand fencing says 6,641 linear feet of sand fencing waterward of primary frontal dunes. Does this include this small piece of land? Was this action of creating an ‘island’ of a sand dune permitted through CAMA? By creating this sand dune area is the town able to claim that land as private property whereas it was formerly dry sand beach and in the public trust, thus, restricting access to the beach?

A: “The simple answer as DCM staff understand it is no. You may wish to read the Court of Appeals’ decision in Nies v. Emerald Isle to learn more about public trust lands/areas vs. public trust rights. That decision can be found here: https://www.nccourts.gov/documents/appellate-court-opinions/nies-v-town-of-emerald-isle.”

Q: My biggest ask would be a simple yes or no, whether or not the town asked to create that little ‘island dune’ east of the main dune line.

A: “DCM is unaware of any specific details about the described ‘island dune.’”

The true nature of the ownership of the property at Freeman Park will continue to be a subject of debate, at least while the town and private land owners continue their litigation, and ultimately, it will likely come down to a judge declaring who actually owns what.

It is worth noting that the town is currently in litigation with property owners at Freeman Park, and the landowners in question are not claiming ownership of the first 1,000 feet.

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