Professor says city was given wrong advice on waterfront-access issue

A state expert on water-access rights says New Bern's hired contract expert is "just plain wrong" to tell the city that 1980s agreements are strong enough to give Sheraton marina owners easement rights to the Trent River.

Joseph Kalo, the co-director of the North Carolina Center for Coastal Policy, says that Chapel Hill attorney Gordon Brown's advice to New Bern leaders - and Brown's challenge of the State Property Office's opinion - is based on an "incomplete analysis" of state law. Kalo is also a professor at the law school of the University of North Carolina at Chapel Hill.

Kalo says a century-old legal case is the foundation of the state's current public-waters statute and says the 1980s agreements would or should have considered that case if the city intended the hotel developer to have unfettered access to the Trent River.

New Bern has acknowledged ownership of the 30-foot strip of waterfront land that is tied to the easement currently held by Marina Ventures LLC. Marina Ventures owns the New Bern Grand Marina next to the Sheraton and is also associated with the hotel owner, the Soleil Group Inc. The State Property Office has said that the easement that the hotel has was granted on the basis of "a mistake of fact" as to who owns the strip and has left it to the city to decide how to correct the easement mistake.

Possession of that easement could determine whether the 250 boat slips near the hotel can be sold.

Brown advised New Bern aldermen last week that a 1984 development agreement between the city and the original owner of the hotel and a second agreement from March 1985 intended to make the hotel developer an "adjoining riparian owner" of the strip of land. The agreements remained in effect for subsequent hotel owners.

"That was a reasonable way to give access, allow construction of docks and to allow (the developers) to use or operate a marina on the waters," Brown said.

In 1995, state law became more stringent about easements for structures built on public-trust waters like the Trent River. Those changes were "not even in contemplation" when the 1980s agreements were signed, Brown said.

"To the extent that the State Property Office interprets ‘adjoining riparian owner' to mean an owner of the fee, that interpretation would impair the common-law right of an owner of riparian lands to transfer ... riparian rights," Brown said in a letter outlining his legal opinion.

Kalo says a closer look at North Carolina law supports the State Property Office's policy that easements like the one the marina owners have are ordinarily available only to owners of riparian land.

"In my opinion, ... (Brown's) letter is simply incorrect as to ... the proper interpretation of the North Carolina statute," Kalo said.

He says it comes down to a case that began just a few miles from here: a dispute over rights to waterfront property in Morehead City.

The case, Shepard's Point Land Company v. Atlantic Hotel, was decided in 1903. In that case, the N.C. Supreme Court found: "Riparian rights being incidental to land abutting navigable waters cannot be conveyed without a conveyance of such land."

"The language in that case says that the riparian rights cannot be severed from riparian land," Kalo said. "There is really nothing that contradicts that in North Carolina law.

"Anything that might seem a contradiction to that decision is simply an exception to a rule laid out rather than a building block for state law," he said.

Kalo said the city's 1980s agreements "are not legally effective" if the intention was to transfer riparian rights to the hotel owner without selling the 30-foot strip.

Brown has advised city leaders to try to stay out of the easement dispute and to instead let the state and the marina owner settle it. Brown said that if the city has to get involved, it should convey the 30-foot strip to Marina Ventures LLC in a "fee simple determinable" transaction. In that case, the city would convey the title of the land to the corporation, but the title would revert to the city if any agreed-to conditions weren't met by the marina owner.

Kalo says that arrangement is questionable.

He says that under state law, the city might be forced eventually to give up both the 30-foot waterfront strip and any control over it.

"That's something that should be studied and considered carefully," he said.

He said the implications of this case go beyond New Bern and could have statewide significance.

"And I think the letter's interpretation of the state's authority is just plain wrong," he said.