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Home / Courts / Real Property – Municipal – Subdivision Plat – Street Depiction – Easement Appurtenant – Town Development – Rule 11 Sanctions

Real Property – Municipal – Subdivision Plat – Street Depiction – Easement Appurtenant – Town Development – Rule 11 Sanctions

Seidner v. Town of Oak Island (Lawyers Weekly No. 11-07-1183, 23 pp.) (Robert N. Hunter Jr., J.) Appealed from Brunswick County Superior Court. (Ola M. Lewis, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: Plaintiffs’ deed refers to a recorded subdivision plat that shows a street adjacent to their lot, which street ends at the Intracoastal Waterway. Without exercising its power of eminent domain, the defendant-town may not interfere with plaintiffs’ easement in the street by building park-like structures at the end of the street and thereby encouraging increased pedestrian and vehicular traffic.

We affirm summary judgment for plaintiffs. We affirm most of the sanctions imposed under N.C. R. Civ. P. 11; however, we vacate the trial court’s imposition of a gatekeeper restriction on the town.

The defendant-town previously planned to put public parks at the ends of all streets that dead-ended into waterways, but the town repealed that ordinance when a property rights group challenged it.

In this case, the town obtained a Coastal Area Management Act (CAMA) permit from the N.C. Department of Environment and Natural Resources (DENR) to develop the end of N.W. 2nd Street by installing five parking spots, an observation deck, and a walkway leading from the deck down to the Intracoastal Waterway. Plaintiffs, who own a lot on N.W. 2nd Street, challenged the town’s plan.


The town contends that the superior court lacked subject matter jurisdiction because plaintiffs failed to exhaust their administrative remedies. We disagree.

Plaintiffs did not seek judicial review of the town’s decision to develop the end of the street until after DENR had exercised its expertise by issuing a CAMA permit. Furthermore, plaintiffs attempted to preserve their rights prior to filing suit by objecting to DENR’s issuance of the permit and then filing a request for a third-party contested case hearing with DENR. DENR denied their request.

Plaintiffs were not required to appeal DENR’s decision to deny their request for a hearing in order to exhaust their administrative remedies.

Plaintiff’s complaint is replete with allegations indicating that an appeal of DENR’s decision would have been futile. In fact, both DENR and the town itself have admitted that the superior court was the appropriate venue for adjudication of their property rights.

Further, the complaint sought declaratory and injunctive relief. DENR has no authority with respect to these matters. Therefore, the superior court was the proper venue for adjudication of plaintiffs’ property rights; any administrative appeal of DENR’s decision would have been inadequate.

Summary Judgment

Where lots are sold and conveyed by reference to a plat which represents a division of a tract of land into streets, lots, parks, and playgrounds, a purchaser of a lot acquires the right to have the streets kept open for his reasonable use, and this right is not subject to revocation except by agreement or estoppel. It is a right in the nature of an easement appurtenant. A street may not be reduced in size or put to any use which conflicts with the purpose for which it was dedicated. Cleveland Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964).

Plaintiffs’ deed refers to a plat depicting Tranquil Harbor subdivision. The map shows plaintiffs’ lot and N.W. 2nd Street, situated immediately adjacent to plaintiffs’ lot, as within the Tranquil Harbor subdivision. These facts establish that plaintiffs are the owners of dedicated and appurtenant easement rights in and to all of the N.W. 2nd Street area from their property.

Plaintiffs’ easement rights are in fact identical to the rights held by the plaintiffs in Barris v. Long Beach, 704 S.E.2d 285 (2010), and in Scronce v. Town of Long Beach, No. COA98-756 (N.C. App. May 4, 1999) (unpublished). The town should be well aware of these rulings because it was the defendant in both cases.

It is obvious that the plaintiffs are owners of appurtenant easements rights.

It is equally obvious that the town’s proposed developments would infringe upon plaintiffs’ easement rights. The addition of parking spaces, an observation deck, and a walkway leading down to the beach will invite the public to use this particular area to access the beach. Even assuming the public already uses the area at the end of N.W. 2nd Street to park and walk down to the beach, the town’s plan will inevitably increase vehicular and pedestrian traffic, congesting the area and diminishing the value of plaintiffs’ easement.

Plaintiffs’ right to unimpeded ingress and egress to and from their property was in part an inducement in purchasing their lot, and the town shall not disrupt or diminish said right through its proposed development without just compensation.

A finding that the town’s construction would constitute a park — or that it would physically block the roadway — is not required. The relevant inquiry is whether the town’s plan would extinguish, alter, or diminish plaintiffs’ easement rights.

The plat vests plaintiffs with an easement that is unimpeded by the town’s proposed developments. This court will not permit the town to diminish the value of plaintiffs’ bargained-for property simply by obtaining a CAMA permit from DENR, an administrative agency that is without authority to adjudicate property rights.

If property is dedicated for a particular purpose, it cannot be diverted from that purpose by a municipality, except under the power of eminent domain.

The town’s proposed development is not consistent with N.W. 2nd Street’s dedication as a public street. The street end on which the town seeks to build has been dedicated as a public street by virtue of a plat depicting said street as part of the Tranquil Harbor subdivision. We cannot agree with the town’s assertion that its park-like structures will serve to prohibit, regulate, divert, control, and limit pedestrian and vehicular traffic on N.W. 2nd street. These structures, like a park, will increase both vehicular and pedestrian traffic in the designated area.

The town’s proposed developments are not consistent with its authority to regulate public streets. Accordingly, we hold the trial court correctly interpreted plaintiffs’ easement rights and did not err in enjoining the town from carrying out its proposed developments.


There is competent evidence in the record to support the trial court’s determination that the town maintained its legal position for the improper purpose of intimidating plaintiffs and unnecessarily increasing plaintiffs’ costs of litigation. The town is well aware of plaintiffs’ easement rights, in light of its participation in both the Barris and Scronce adjudications. Notwithstanding this court’s prior orders, the town continues to strong-arm property owners, such as plaintiffs, by obtaining a CAMA permit in an effort to develop property that is not the town’s to develop.

The trial court did not abuse its discretion in awarding attorney’s fees, costs, and expenses in favor of plaintiffs. Plaintiffs would not have incurred these expenses but for the town’s stubborn persistence in attempting to develop coastal property under the guise of a CAMA permit and an ordinance permitting regulation of the town’s streets.

However, this court cannot uphold the trial court’s imposition of a  gatekeeper sanction. While the town’s repeatedly asserted legal position was tenuous, we cannot conclude that it was frivolous.

Affirmed in part, vacated in part.

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