§ 146-12. Easements in lands covered by water. - North Carolina Statutes

§146‑12.  Easements in lands covered by water.

(a)        The Department ofAdministration may grant, to adjoining riparian or littoral owners, easementsin lands covered by navigable waters or by the waters of any lake owned by theState for such purposes and upon such conditions as it may deem proper, withthe approval of the Governor and Council of State. The Department may, with theapproval of the Governor and Council of State, revoke any such easement uponthe violation by the grantee or his assigns of the conditions upon which it wasgranted.

Every such easement shallinclude only the front of the tract owned by the riparian or littoral owner towhom the easement is granted, shall extend no further than the deep water, andshall in no respect obstruct or impair navigation.

When any such easement isgranted in front of the lands of any incorporated town, the governing body ofthe town shall regulate the line on deep water to which wharves may be built.

(b)        Easements NotRequiring Approval by the Governor or Council of State. – In accordance withthe provisions in subsections (c) through (m) of this section, the Departmentof Administration shall grant easements to adjoining riparian or littoralowners in State‑owned lands covered by navigable waters without theapproval of the Governor and the Council of State for:

(1)        Existing structurespermitted under Article 7 of Chapter 113A or structures existing prior to theeffective date of the permitting requirements of Article 7 of Chapter 113A ofthe General Statutes.

(2)        New structurespermitted under Article 7 of Chapter 113A of the General Statutes after theeffective date of this section.

(c)        Voluntary EasementApplications for Existing Structures. – Riparian or littoral property owners ofexisting structures may voluntarily obtain an easement under subsection (b) ofthis section in accordance with the procedures set forth in this section. Forpurposes of this section, the term "existing structures" means allpresently existing piers, docks, marinas, wharves, and other structures locatedover or upon State‑owned lands covered by navigable waters. Applicationsfor voluntary easements shall be received by the State Property Office no laterthan October 1, 2001.

(d)        Notification ofAvailability of Voluntary Easements. – The State Property Office shall providepublic notice of the availability of voluntary easements by placing anadvertisement in one newspaper of general circulation in each of the coastalcounties identified under G.S. 113A‑103(2) at least once every sixmonths. The final notice shall be placed no later than  September 1, 2001.

(e)        Mandatory EasementApplications for New Structures. – Riparian or littoral property owners of newstructures shall obtain an easement under subsection (b) of this section in accordancewith the procedures set forth in this section.

(f)         EasementApplication. – An application by a riparian or littoral owner of a new orexisting structure for an easement under subsection (b) of this section shallinclude all of the following and shall:

(1)        Be made in writingto the State Property Office and include the full name and address of theeasement applicant.

(2)        Include a platdepicting the footprint and total square footage of all structures located inor over State‑owned lands covered by navigable waters. The footprintshall include the total square footage of the area of State‑owned landscovered by navigable waters that are enclosed on three or more sides by anystructure.

(3)        Include a copy ofany "CAMA" permit required for structures under Article 7 of Chapter113A of the General Statutes.

(4)        Include a copy ofthe deed or other instrument through which the applicant establishes ownershipof the adjacent riparian or littoral property.

(5)        Specify the use oruses associated with the structure to be covered by the easement.

(6)        Include theappropriate easement purchase payment.

(g)        Easement Terms. –Any easement granted under subsection (b) of this section shall be in a formsuitable for recordation and shall be executed by either the Director or DeputyDirector of the State Property Office. The State‑owned lands covered bynavigable waters included within the easement shall be limited to the footprintof the structure. The terms of each easement shall provide that the easement:

(1)        Is appurtenant tospecifically described, adjacent riparian or littoral property and runs withthe land.

(2)        Specifies that theholder of the easement shall not exclude or prevent the public from exercisingpublic trust rights, including commercial and recreational fishing,shellfishing, seine netting, pound netting, and other fishing rights.

(3)        Specifies that theholder of the easement obtains no additional rights to interfere with theapproval, issuance, or renewal of shellfish or water column leases or to interferewith the use or cultivation of existing shellfish leases, water column leases,or shellfish franchises.

(4)        Specifies that anyrights conveyed to the holder of the easement are not inconsistent with therights conferred by previous conveyances made by the State for the sameproperty.

(5)        Is valid for a termof 50 years from the date of issuance.

(6)        Is eligible for onerenewal term of 50 years.

(7)        Is granted in thepublic interest for good and valuable consideration received by the State.

(8)        Specifies by metesand bounds description or attached plat the footprint of the structure forwhich the easement is issued.

(9)        Describes the usesof the structure for which the easement is being granted, which may include:

a.         Providing reasonableaccess for all vessels traditionally used in the main watercourse area to deepwater or, where present, to a specified navigational channel;

b.         Mooring vessels ator adjacent to the structure;

c.         Enhancing orimproving the value of the adjacent riparian or littoral property; and

d.         All otherreasonable, nonexclusive public trust uses as specified in the easementapplication, to the extent not otherwise limited by provisions of thisSubchapter or any other law.

(10)      Specifies that rightsgranted include the right to repair, rebuild, or restore existing structuresconsistent with Article 7 of Chapter 113A of the General Statutes.

(11)      Specifies that theexercise of any rights under the easement shall be contingent upon obtainingall required permits.

(h)        Easement Purchase Payment.– The easement purchase payment for easements issued under subsection (b) ofthis section shall be computed on the basis of one thousand dollars ($1,000)per acre of footprint coverage prorated in increments of two hundred fiftydollars ($250.00) rounded up to the nearest quarter acre. The minimum paymentshall be five hundred dollars ($500.00) if any payment is owed after theriparian credit is applied. In recognition of common law riparian and littoralrights and a declared public policy concern that easements provided under thissection be available to all citizens, a credit shall be given against anyeasement purchase payment in an amount equal to the number of linear feet ofshoreline multiplied by a factor of 54 feet. No linear feet of shoreline may beused in computing the credit if that area of shoreline has been the basis of aprevious credit. For purposes of determining the linear feet of shorelineowned, an application submitted by a corporation or other entity whose membersinclude riparian or littoral lot owners, which owners have the right to use thestructure for which the easement is sought, and whose lots are restricted fromconstruction thereon of other structures for similar use, shall be consideredan application whose easement purchase payment shall be determined by using theentirety of such use restricted shoreline for purposes of determining theapplicable riparian credit. Shoreline utilization shall be considered "userestricted" if riparian or littoral structures are prohibited by eitherpermit condition or by restrictive covenant or similar, enforceable privaterestriction.

(i)         Easement Issuance.– Within 75 days of receipt of a completed application under subsection (f) ofthis section, the Director or Deputy Director of the State Property Officeshall issue the requested easement in a form sufficient for recording in theregister of deeds of the county or counties in which any part of the structureis located. The act of easement issuance under subsection (b) of this section shallbe exempt from the provisions in Chapter 150B of the General Statutes. Failureto issue the requested easement within 75 days of receipt of a completedapplication and any applicable easement purchase payments shall be treated asissuance of the requested easement and shall entitle the applicant to executionand issuance of the easement.

(j)         Easement Renewal.– Upon written request from the current easement holder, easements shall berenewed for one additional term of 50 years. Renewal easements shall be subjectto the terms, conditions, and purchase payments applicable to initial easementsat the time of renewal. Written notification of expiring easements shall beprovided by the State Property Office at least 180 days prior to expiration ofthe initial easement term. Letter applications for renewal easements shall besubmitted within 180 days of the notice of expiration by the State PropertyOffice.

(k)        EasementModification. – Any expansion of the footprint of an existing structure shallrequire an easement or modification of any existing easement. The applicationfor a modification of an easement shall be as provided in subsection (f) ofthis section. The easement purchase payment shall be based only on thefootprint of the expansion after applying the riparian credit. The minimumeasement purchase payment shall be five hundred dollars ($500.00) if anypayment is owed after the riparian credit is applied. Easement holders mayvoluntarily apply for modification of an easement to correct any material errorsor omissions. No easement purchase payment shall be required for themodification of an existing use that does not expand the footprint of theexisting structure. No refunds shall be provided for any modification thatreduces the footprint.

(l)         EasementTransfers. – An easement granted under subsection (b) of this section shall betransferred to a subsequent owner of the adjacent riparian or littoral propertyupon written notification to the State Property Office. The notification shallbe given within 12 months of the transfer of title to the adjacent riparian orlittoral property and shall be accompanied by the instrument of transfer and aneasement purchase payment as follows:

(1)        During the first 25years of the easement term, the easement purchase payment shall be the same asthe initial payment; and

(2)        During the second 25years of the easement term, the easement purchase payment shall be twice theamount of the initial payment.

(m)       Easement Revocation.– Easements issued under subsection (b) of this section may be revoked inaccordance with the provisions of G.S. 146‑12(a). Any revocation shallentitle the easement holder to seek administrative review in accordance withthe provisions of Article 3 of Chapter 150B of the General Statutes.

(n)        Exemptions. – Thefollowing types of structures shall not require an easement under this section:

(1)        Piers, docks, orsimilar structures for the exclusive use of the owner or occupant of theadjacent riparian or littoral property, which generate no revenue directlyrelated to the structure and which accommodate no more than ten vessels;

(2)        Structuresconstructed by any public utility that provide or assist in the provision ofutility service;

(3)        Structuresconstructed or owned by the State of North Carolina, or any politicalsubdivision, agency, or department of the State, for the duration that thestructures are owned by the entity; or

(4)        Structures onsubmerged lands or lands covered by navigable waters not owned by or for thebenefit of the public that have been created by dredging or excavating lands. (1854‑5,c. 21; R.C., c. 42, s. 1; Code, s. 2751; 1889, c. 555; 1891, c. 532; 1893, cc.4, 17, 349; 1901, c. 364; Rev., s. 1696; C.S., s. 7543; G.S., s. 146‑6;1959, c. 683, s. 1; 1995, c. 529, s. 2; 1998‑217, s. 35(a), (b).)