We are working in an undeveloped Subdivision near the Coast which was platted and recorded in 1980. A developer has purchased the property and is putting in a few roads, a water line and will sell the existing lots.
The back of a few of the lots is a Marsh. They would like to build an observation deck out into the Marsh. They were told by the county that they had to prove that their property touches the MHW in order to build that deck. Though the plat of record appears to intend the rear of the lots to be the Marsh, it does not definitively say anywhere on the plat that the rear of the lots is the MHW or even an approximate MHW. (Both adjoining plats of record call for the line to be the approximate MHW).
They had an outfit come and delineate the approximate MHW by vegetation. That group flagged it out in the Marsh so that it does not actually touch our platted lines.
1. Who owns the Marsh? I believe this is the State, but would welcome any insight any of you might have.
2. Is the MHW and the CAMA the same thing or is the CAMA the 100' buffer line?
What is a CAMA? What is the North Carolina Court's definition of MHW or OHWL? Where does the State ownership change to riparian ownership...and to upland ownership. Is it based on historic use or current use?
DDSM
CAMA is the regulatory act that governs development along NC's coast. It has many lines but, as far as I know, setbacks are relative to NHW for them. I think they use MHW and NLW on occasion, too.
For title, sounds like you need to go back in the record. Maybe try a call to the surveyor that did the division (1980 isn't that long ago). Somewhere your parcel has a definitive title line. It may not be accurately shown on the subdivision map; however, it is hard to believe a separate owner holds title to the land between your lot rears and the MHW.
I have heard of (not encountered) some craziness where a developer will hold a "2-foot" strip between the rears and the water. Not sure if it gives them a lock on the riparian rights and makes an onsite marina more valuable or, if it just satisfies the regulators desire to keep the number of docks down. Like I said, I've heard, not encountered.
1. State owns the marsh (may be a rare instance where "King's Grant" places it in the hands of a private owner but, no first-hand experience with that).
2. MHW and CAMA Lines are not the same. CAMA has a series of setbacks for development (CAMA Lines), I believe they are typically measured from Normal High Water when it comes to marsh front (ocean front being different).
You might call the environmental guys that flagged the line. They should be able to answer your CAMA questions.
Now I've got to ask, where are you working?
If the marsh is a salt marsh, then it's technically tidelands and owned by the State up to the MHWL.
I agree with Back Chain that you need to look at the title of the parent tract and perhaps go even farther back in title to see if the property was intended to extend to the MHWL. If you can't find that it was expressly intended to extend that far, then look to see how it was first granted and whether the grantor expressly reserved some portion of land between the subdivision's parent tract and the water's edge. If not, all of the case law that I'm aware of supports that lacking an express intent to reserve some portion of land between an otherwise apparent waterfront parcel and the waterbody, the granted parcel front's on the waterbody and any mapped or described courses are treated as meander courses.
I'd feel more confident stating that as advice in a PLSS state. Some of the Eastern States, particularly those that were once Colonies can have statutes or case law that address specific situations, especially riparian/littoral situations, that run counter to the majority of case law in other areas of the country. The title history is often more convoluted and the likelihood of some reservation hiding somewhere in it is higher than it is in non-colonial states.
back-chain, post: 379502, member: 7900 wrote: CAMA is the regulatory act that governs development along NC's coast. It has many lines but, as far as I know, setbacks are relative to NHW for them. I think they use MHW and NLW on occasion, too.
For title, sounds like you need to go back in the record. Maybe try a call to the surveyor that did the division (1980 isn't that long ago). Somewhere your parcel has a definitive title line. It may not be accurately shown on the subdivision map; however, it is hard to believe a separate owner holds title to the land between your lot rears and the MHW.
I have heard of (not encountered) some craziness where a developer will hold a "2-foot" strip between the rears and the water. Not sure if it gives them a lock on the riparian rights and makes an onsite marina more valuable or, if it just satisfies the regulators desire to keep the number of docks down. Like I said, I've heard, not encountered.
1. State owns the marsh (may be a rare instance where "King's Grant" places it in the hands of a private owner but, no first-hand experience with that).
2. MHW and CAMA Lines are not the same. CAMA has a series of setbacks for development (CAMA Lines), I believe they are typically measured from Normal High Water when it comes to marsh front (ocean front being different).You might call the environmental guys that flagged the line. They should be able to answer your CAMA questions.
Now I've got to ask, where are you working?
Brunswick Co.
Is this a fabled white whale that lies very near the SC border? I don't anything about the tract in particular, just that a few developers have long salivated over the potential.
Would like to hear what you decide on, or learn of, the water rights.
back-chain, post: 379502, member: 7900 wrote:
. . .
I have heard of (not encountered) some craziness where a developer will hold a "2-foot" strip between the rears and the water. Not sure if it gives them a lock on the riparian rights and makes an onsite marina more valuable or, if it just satisfies the regulators desire to keep the number of docks down. Like I said, I've heard, not encountered.
I've witnessed the "2' strip lot" on lot lines to prevent access from the lot to a platted road as part of a retail subdivision. The idea was to force access to the lots from the existing road to be allowed only at "official" entry gaps into the common parking area. Also seen strips platted to block access to open areas granted to the County for equestrian purposes, so folks aren't saddling up in their back yard and heading directly into the equestrian parcel(s), causing erosion (big fill slopes), possible prescriptive access easements and other problems. Mostly "planned" subdivisions from the 30s and 40s. Not a good way to do it as the developer (or HOA type successors) is forever stuck with liability, maintenance and tax issues. Usually fixed decades later by the developer (owner) defaulting on taxes or a formal donation and the County (City) taking ownership and establishing whatever restrictions are needed.
It's simply bad land ownership planning. The wakeup call was "don't retain in fee an otherwise useless -barrier- parcel only for the purpose of access restriction" when a simple encumbrance on the Subdivision Map/deeds accomplishes the same thing with no burdens on the grantor.
Agreed the world has gotten better now that local agencies review/approve subdivisions for civil engineering defects, silliness as above, and other matters to protect the public good?