THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, April 11, 1995 TAG: 9504110430
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY BETTY MITCHELL GRAY, STAFF WRITER
DATELINE: RALEIGH LENGTH: Medium: 76 lines
A panel studying submerged-lands issues backed away Monday from a recent state appeals court decision and decided that commercial marinas do not need an easement and should not be charged fees to build piers or docks over public waterways.
The study panel voted 12-6 to recommend that the General Assembly change state statutes and let waterfront property owners build piers, docks and the like over waters adjacent to their property without receiving an easement from the state.
The vote came over the objections of the panel's two chairmen, who said the recommendation would not survive the scrutiny of the General Assembly and the courts.
And it came over the objection of the state attorney general's office, which said the recommendation, if it becomes law, would substantially change more than 200 years of laws and traditions giving public access to state waters predominance over private property rights.
``You are going to enlarge the property rights of riparian owners out into the public trust waters,'' said Dan McLawhorn, a lawyer with the attorney general's office. ``You would be striking a balance in a different place than the law presently has it.''
But supporters of the proposal said they were confident the recommendation is constitutional and will be approved by the General Assembly.
``I think it should stand up in court,'' said George T. ``Tom'' Davis, a Swan Quarter lawyer who wrote the proposal and presented it to the committee for its approval. ``I think it is very close to what everyone assumed the law was.''
North Carolina does not charge a fee for marina operators in exchange for the use of state waters. But recent court rulings have required the state to issue an easement for ``for-profit'' marinas.
Proponents of charging fees for those easements have said such fees are an issue of equity.
But opponents of fees, including marina owners and other coastal business interests, say waterfront property owners already pay substantial property taxes for their property and should be able to build piers and marinas at no added charge.
The recommendation approved by the committee dismisses the recent court decision and, instead, repeals state laws that require easements.
The recommendation, which would be effective upon its approval by the General Assembly, also says waterfront property owners who make repairs to existing marinas will not have to have an easement to do so.
David Farren, a lawyer with the Southern Environmental Law Center, a Chapel Hill firm that has advocated fees for marinas and other ``for-profit'' users of state waters, said after the meeting that he was disappointed, but not surprised by the committee's vote.
``The proposal is so extreme, it's going to be difficult to sell this even to a sympathetic legislative leadership,'' he said. ``What they've done . . . basically tries to legislate away the public's ownership of public trust waters, which I don't think can hold up given our explicit constitutional protection of these public resources.
``I would predict that this would not be enacted by the General Assembly and it's unfortunate because this committee has squandered its opportunity to really examine this issue,'' Farren said.
The panel's sole commercial fisherman also objected to the vote and predicted a long legal battle if the recommendation becomes law.
``It has detracted from my rights as a user of public trust waters,'' said Terry Pratt, a commercial fisherman from Merry Hill. ``I would advise you to get ready for a long haul.''
Sen. Charlie Albertson, D-Duplin, the panel's co-chairman who heads the Senate committee that will consider the recommendation, predicted after the vote that it will not be approved by the state legislature.
``I won't block it,'' Albertson said. ``But I believe it will have a hard time getting passed. The waters do belong to the state. And I don't see the people relinquishing that control.'' by CNB