NORTH CAROLINA GENERAL ASSEMBLY
1965 SESSION

CHAPTER 237
HOUSE BILL 174

AN ACT AMENDING ARTICLE 3 OF CHAPTER 104B OF THE GENERAL STATUTES SO AS TO MAKE MORE SPECIFIC THE POWER OF LOCAL GOVERNMENTS TO PROTECT SAND DUNES ALONG THE OUTER BANKS.

The General Assembly of North Carolina do enact:

Section 1.  Article 3 of Chapter 104B of the General Statutes of North Carolina, as the same appears in Replacement Volume 2D, 1965, is hereby amended by rewriting the said Article as follows:
"ARTICLE 3
"Protection of Sand Dunes Along Outer Banks.
"§ 104B-3.  Legislative Findings. It is hereby determined and declared as a matter of legislative finding that the area of the State of North Carolina lying along the Atlantic Ocean front, and in particular the Outer Banks of this State as hereinafter denned, is a major asset to the economy of the entire State and as such should be protected and preserved. This area is wholly or in part protected from actions of the Atlantic Ocean and storms thereon by a system of natural or constructed dunes providing a protective barrier for adjacent lands and inland waters and land against the actions of sand, wind, and water. Certain persons, firms, and corporations have from time to time modified or destroyed the effectiveness of such protective barriers in the process of developing the waterfront for various purposes. These practices constitute serious threats to the safety of adjacent properties and to public highways, as well as to the value and taxable basis of such adjacent properties, and they constitute a real danger to the health, safety, and welfare of persons living, visiting, or sojourning in such area. It is therefore deemed necessary to protect that area and especially the system of protective barrier dunes as hereinafter provided.
"§ 104B-4.  Damaging or Removing Without Permit. (a) Except as otherwise provided in subsection (b) of this Section, it shall be unlawful for any person, firm, or corporation in any manner to damage, destroy, or remove any sand dune, or part thereof, lying along the Outer Banks of this State as hereinafter defined, or to kill, destroy, or remove any trees, shrubbery, grass, or other vegetation growing on said dunes, without first having obtained a permit as specified herein authorizing such proposed damage, destruction, or removal.
"(b)	Any board of county commissioners whose county includes a portion of the Outer Banks of this State may establish a shore protection line, for the purpose of limiting the territorial application of the provisions of subsection (a) of this Section to those dunes within the county which in the judgment of said board serve as protective barriers. In any county which so elects to establish a shore protection line, the provisions of subsection (a) of this Section shall apply only with respect to sand dunes (or parts thereof and vegetation growing thereon) located on the ocean side of said shore protection line. In establishing any such shore protection line the board of county commissioners may hold such hearings as it deems desirable, and may consult with the Department of Water Resources and others.
"§ 104B-5.  Findings Prerequisite to Issuance of Permit. No such permit shall be granted by any officer, agency, or board charged with the issuance of permits hereunder unless such officer, agency, or board shall first have found as a fact that the particular action, damage, destruction, or removal proposed will not materially weaken the dune or reduce its effectiveness as a means of protection from the effects of high wind and water, taking into consideration the height, width, and slope of the dune or dunes and the amount and type of vegetation thereon. Permits so issued will require the restoration of protection so affected by construction as well as the restoration of vegetation.
"§ 104B-6.  Designation of Shoreline Protection Officer or Officers. (a) Any board of county commissioners whose county includes a portion of the area subject to this Act may appoint and empower with police authority one or more Shoreline Protection Officers, to serve at the will of the board. In the alternative the board of county commissioners may designate to perform the powers, duties and functions of a Shoreline Protection Officer:
(1)	A Shoreline Protection Officer of any other county or counties, with the approval of the board of county commissioners of such other county or counties;
(2)	A municipal employee or official of any municipality or municipalities within the county, with the approval of the municipal governing body; or
(3)	Any employee or official of the county. In the absence of such appointment or designation, the board of county commissioners shall itself have the powers, duties and functions of the Shoreline Protection Officer as specified herein.
"(b)	The board of county commissioners may pay a Shoreline Protection Officer a fixed salary or compensation in such other measure as it deems appropriate. The board of county commissioners may also accept and disburse any funds which may be made available by the State or Federal Governments as contributions towards the salary or expenses of a Shoreline Protection Officer. The board of county commissioners may make necessary appropriations for the special purpose of paying the salary or salaries of Shoreline Protection Officers and any expenses pertaining to shoreline protection and may levy annually taxes for the payment of such appropriation as a special purpose, in addition to any allowed by the Constitution.
"(c)	The board of county commissioners may enter into and carry out contracts with any other county or counties under which the parties agree to support a joint Shoreline Protection Department. The board of county commissioners may make any necessary appropriations for such a purpose.
"§ 104B-7.  Duties of Shoreline Protection Officer. It shall be the duty of the Shoreline Protection Officer to receive applications for permits under this Article, to check each application for compliance with this Article and any regulations adopted by the board of county commissioners, to make the findings called for under this Article, to issue the permit where no fact appears which would make such issuance a violation of this Article or of regulations adopted hereunder, to collect such fees as may be specified by the board of county commissioners and to deliver same to the county treasurer, to make such reports as may be required by the board of county commissioners, to furnish a surety bond for the faithful performance of his duties and the safeguarding of any public funds coming into his hands(which bond shall be approved as to amount, form, and solvency of sureties by the board of county commissioners), and to carry out such related duties as may be specified by the board of county commissioners.
"§ 104B-8.  Inspection and Enforcement Powers. (a) A Shoreline Protection Officer is authorized at any reasonable hour to enter upon any lands and structures upon lands to inspect the property, as may be necessary in performing his duties under this Article and the rules and regulations adopted pursuant to this Article; and such entry shall not be deemed a trespass, provided that the county shall make reimbursement for any damages resulting to such property as a result of such activities.
"(b)	A Shoreline Protection Officer shall have within the county or counties where he holds his appointment the powers of peace officers vested in the sheriffs and constables, for the purpose of enforcing the provisions of this Article and the rules and regulations adopted pursuant to this Article, and for the purpose of initiating prosecutions under this Article.
"§ 104B-9.  Regulations by Board of County Commissioners; Taxes Authorized. (a) The board of county commissioners is hereby empowered to adopt and enforce such regulations as it may deem necessary, to enforce the provisions of this Act, and also to matters concerning the form, time, and manner of submission of any application for a permit under this Article. It may also fix any reasonable fees to cover part or all of the cost of necessary inspections or other administrative procedures under this Article.
"(b)	The board of county commissioners of any county which includes a portion of the area subject to this Article is hereby authorized to levy annually on all taxable property in the county a special tax for the special purpose of paying any expenses incurred in carrying out the provisions of this Article and the General Assembly does hereby give its special approval for the levy of such taxes.
"§ 104B-10.  Appeal From Decision of Shoreline Protection Officer. (a) In the event that a Shoreline Protection Officer denies a permit under this Article, the applicant may within 30 days file an appeal with the board of county commissioners. In the event that a Shoreline Protection Officer grants a permit under this Article, any property owner whose property is damaged by action taken under the permit may within 30 days file an appeal with the board of county commissioners. On receipt of any appeal, the board of county commissioners shall be entitled to consider the matter ab initio and may take any action which the Shoreline Protection Officer could have taken under this Article.
"(b)	Every decision of the board of county commissioners on such an appeal as well as every decision granting or denying a permit by a board of county commissioners performing the functions of Shoreline Protection Officer, shall be subject to review by the Superior Court of the county by proceedings in the nature of certiorari. Pending the final disposition of any such appeal, no action shall be taken which would be unlawful in the absence of a permit issued under this Article.
"§ 104B-11.  Constructing, Damaging and Removal of Materials on Ocean Side of Project Protection Line. (a) The Department of Water Resources shall establish a project protection line prior to the start of construction of each beach restoration or hurricane protection project. Said project protection line will identify the line along which said beach restoration and hurricane protection works will be constructed along the ocean front. The construction of said beach restoration and hurricane protection works will be located on the ocean side of said project protection line.
"(b)	Subsequent to the establishment of such a project protection line, it shall be unlawful for any person, firm or corporation to construct any building or part thereof, open any new road or street or remove sand, sea shells and similar materials on the ocean side of said project protection line. It shall also be unlawful for any person, firm or corporation to alter in any manner the sand dune or beach or in any manner to insure, destroy, interfere with, or reduce the operation of any then existing groins, jetties or any other erosion control works on the ocean side of the project protection line. Groins, jetties, piers or any other such structure will not be constructed on the ocean side of the project protection line without first obtaining a permit from the Department of Water Resources. It shall be further unlawful to drive or operate vehicles of any type or nature on or along the sand dunes or beaches on the ocean side of said project protection line except at such places as may be designated.
"§ 104B-12.  Enforcement. (a) Any violation of this Article or of regulations promulgated by a board of county commissioners under the authority of this Article shall constitute a misdemeanor, and upon conviction thereof, any person, firm or corporation committing such violation shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00); provided that the provisions of this Article shall not be construed to apply to the removal of sand, sea shells or similar materials for souvenir value in such amounts as may be carried upon the person. Failure to restore any sand dune or part thereof which has unlawfully been damaged, destroyed, or removed, or to restore or replace any trees, shrubbery, grass, or other vegetation which has unlawfully been killed, destroyed, or removed from said dunes shall constitute a separate violation of this Article for each ten days that such failure continues after written notice from the Shoreline Protection Officer or the board of county commissioners.
"(b)	In addition to other remedies, the board of county commissioners may institute any appropriate action or proceedings (1) to restrain or prevent any violation of this Article or (2) to require any person, firm, or corporation which has committed a violation to restore any sand dune or part thereof which has unlawfully been damaged, destroyed, or removed, or to restore or replace any trees, shrubbery, grass, or other vegetation which has unlawfully been killed, destroyed, or removed from said dunes in violation of this Article.
"§ 104B-13.  Definitions. As used in this Article:
(1)	The term 'Outer Banks of this State' shall be construed to mean all of that part of North Carolina which is separated from the mainland by a body of water, such as an inlet or sound, and which is in part bounded by the Atlantic Ocean, and in New Hanover, Onslow, and Brunswick Counties this shall include the land areas lying between the Intra-Coastal Waterway and the Atlantic Ocean.
(2)	The term 'Shoreline Protection Officer' includes any person designated by a board of county commissioners to perform the functions of Shoreline Protection Officer, as well as a Shoreline Protection Officer duly appointed by a board of county commissioners.
"§ 104B-14.  Description of Lines Established Under Article. (a) The board of county commissioners in establishing a shore protection line pursuant to § 104B-4, and the Board of Water Resources in establishing a project protection line pursuant to § 104B-11, may define said line by showing it on a map or drawing, by a written description, or any combination thereof, to be designated appropriately and filed permanently with the Clerk of Superior Court and with the Register of Deeds in the county where the land lines (in the case of a shore protection line) or the Director of Water Resources (in the case of a project protection line). Alterations in these lines shall be indicated by appropriate entries upon or additions to such map or description. Such entries or additions shall be made by or under the direction of the Clerk of Superior Court or Director of Water Resources, as the case may be. Photographic, typed or other copies of such map or description, certified by the Clerk of Superior Court (in the case of a shore protection line) or the Director of Water Resources (in the case of a project protection line), shall be admitted in evidence in all courts and shall have the same force and effect as would the original map or description. The board of county commissioners or Department of Water Resources, as the case may be, may provide for the redrawing of any such map. A redrawn map shall supersede for all purposes the earlier map or maps which it is designated to replace upon the filing thereof at those places designated above.
"(b)	The Department of Water Resources shall file with the Secretary of State and with the Clerk of Superior Court and the Register of Deeds of every county in which a beach erosion or hurricane protection project or any part thereof is located: (1) a certified copy of the map, drawing, description or combination thereof showing the project protection line for said project; and (2) a certified copy of any redrawn or altered map or drawing, and of any amendments or additions to written descriptions, showing alterations to said project protection line. The filings required by this subsection shall constitute compliance with the requirements of Article 18 of Chapter 143 of the General Statutes.
"§ 104B-15.  Powers of the Board of Water Resources. In addition to its other powers under this Article, the Board of Water Resources shall be empowered to render advice and assistance to any Shoreline Protection Officer or Officers, board of county commissioners, or other office, agency, or board having responsibilities under this Article. In exercising this function it shall specifically be authorized to furnish manuals, suggested standards, plans, and other technical data; to conduct training programs; and to give advice and assistance with respect to handling of particular applications; but it shall not be limited to such activities."
Sec. 2.  Should any Section, clause, or provision of this Act be declared by the courts to be unconstitutional or invalid for any reason, such decision shall not affect the validity of the Act as a whole or any part thereof other than the part so decided to be unconstitutional or invalid.
Sec. 3.  All laws and clauses of laws in conflict herewith are hereby repealed to the extent of such conflict.
Sec. 4.  This Act shall become effective upon its ratification.
In the General Assembly read three times and ratified, this the 14th day of April, 1965.