§ 156.063  ENCROACHMENT OF STRUCTURES ON THE OCEAN BEACH.
   (A)   Purpose. The purpose of this section is to minimize the encroachment of structures onto the publicly used portion of the beach as a result of erosion. For the purposes of this section, the PUBLICLY USED PORTION OF THE BEACH includes the area east of the seaward toe of the frontal dune, the first line of stable natural vegetation, or the dune escarpment, whichever is farthest landward.
   (B)   Intent.
      (1)   To preserve necessary longshore access of ocean rescue and emergency vehicles.
      (2)   To limit unsafe conditions in any publicly used portion of the beach caused by structures that have become vulnerable to repetitive damage as a result of erosion. The town finds that oceanfront structures are at far greater risk of damage when the dune system recedes landward of their location due to erosion. Without the protection afforded by the dune system, structures are subjected to direct wave run-up and storm surge conditions that increase the frequency and intensity of damage they will incur. When damaged structures are present seaward of the dune system and located on the publicly used portion of the beach, they are accessible by the public and, therefore, pose health and safety risks associated with human exposure to scattered debris and litter, sharp objects, including nails, wood, and broken glass, downed electrical service lines, damaged wastewater system components, and structures at risk of imminent collapse.
      (3)   To preserve the commonly accepted public trust rights to recreate within the dry sand beach area and ensure that public trust lands, which also include the wet sand beach and submerged lands, remain open and unobstructed.
      (4)   To protect and preserve the natural, aesthetic, and recreational resources along the oceanfront.
   (C)   Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      DRY SAND BEACH.  The area of the ocean beach between the normal high tide line and the seaward toe of the frontal dune, or the first line of stable natural vegetation in such cases where the seaward toe is not readily identifiable.
      DUNE SYSTEM, FRONTAL DUNE.  The first mound of sand located landward of the beach having sufficient vegetation, height, continuity and configuration to offer protective value.
      DUNE SYSTEM, PRIMARY DUNE.  The first mound of sand located landward of the beach having an elevation equal to the mean flood level for the area plus 6 feet. The PRIMARY DUNE extends landward to the lowest elevation in the depression behind the same mound of sand.
      DUNE WALKOVER STRUCTURE.  A raised walkway constructed for the purpose of providing access to the beach from points landward of the dune system.
      ESCARPMENT.  The vertical drop or steep slope in the beach profile separating two comparatively level or more gentle sloping surfaces caused from high tide or storm tide erosion.
      FIRST LINE OF STABLE NATURAL VEGETATION.  This line represents the boundary between the normal dry sand beach, which is subject to constant flux due to waves, tides, storms and wind, and the more stable upland areas. The vegetation line is generally located at or immediately oceanward of the seaward toe of the frontal dune or erosion escarpment. The Division of Coastal Management or Local Permit Officer shall determine the location of the stable and natural vegetation line, based on visual observations of plant composition and density. If the vegetation has been planted, it may be considered stable when the majority of the plant stems are from continuous rhizomes, rather than planted individual rooted sets. The vegetation may be considered natural when the majority of the plants are mature and additional species native to the region have been recruited, providing stem and rhizome densities that are similar to adjacent areas that are naturally occurring. In areas where there is no stable natural vegetation present, this line may be established by interpolation between the nearest adjacent stable natural vegetation by on-ground observations or by aerial photographic interpretation.
      OCEAN BEACH.  The lands subject to public trust rights adjacent to the ocean that consist of unconsolidated soil materials that extend from the normal low tide line landward to either:
         (a)   The first line of stable natural vegetation; or
         (b)   The toe of slope of the primary or frontal dune.
      The OCEAN BEACH shall include the wet sand beach and the dry sand beach as defined in this section.
      STATIC VEGETATION LINE. In areas within boundaries of a large-scale beach fill project, the first line of stable natural vegetation that existed prior to the onset of project construction shall be defined as the STATIC VEGETATION LINE. The “onset of project construction” shall be defined as the date sediment placement begins. A STATIC VEGETATION LINE shall be established in coordination with the N.C. Division of Coastal management using on-ground observation and surveys of existing conditions for all areas of the oceanfront that undergo a large-scale beach fill project. Once a static vegetation line is established, this line shall be used as the reference point for measuring oceanfront setbacks in all locations where it is landward of the first line of stable natural vegetation. In all locations where the first line of stable natural vegetation is landward of the static vegetation line, the first line of stable natural vegetation shall be used as the reference point for measuring oceanfront setbacks.
      TOE OF SLOPE.  That point between the beach and the dune system where the uniform line of slope from the ocean toward the barrier dune begins an abrupt change upward and becomes the slope of the barrier dune.
      WET SAND BEACH.  The area of the ocean beach between the normal high tide line and the normal low tide line.
   (D)   Limits of encroachment. This section describes when a structure is determined to be in violation of this section as a result of its encroachment on the ocean beach.
      (1)   Principal buildings. No portion of a principal building shall be permitted to encroach onto the ocean beach more than 10 feet beyond the seaward toe of the frontal dune, or more than 20 feet beyond the first line of stable natural vegetation, whichever is less.
      (2)   Accessory buildings or structures. Pools shall not encroach onto the ocean beach beyond the first line of stable natural vegetation or dune escarpment, whichever is most seaward. Pile-supported accessory buildings or accessory structures shall not encroach onto the ocean beach more than 10 feet beyond the seaward toe of the frontal dune, or more than 20 feet beyond the first line of stable natural vegetation, whichever is less.
      (3)   Dune walkover structures. When in the judgment of the Director of Community Development a dune walkover structure incurs substantial structural damage or presents a risk to public safety, the structure must be relocated landward to the dune escarpment.
         (a)   In no instance shall a dune walkover structure extend more than 20 feet seaward of the seaward toe of the frontal dune or dune escarpment.
         (b)   Dune walkover structures shall be constructed so that the staircase turns parallel to the dune if there is more than a 12-foot-vertical rise in the staircase required to provide access to the surface of the beach. The requirement to turn the stairs shall not apply in instances where it would preclude the placement of the stairs entirely within the subject property.
      (4)   Encroachment onto wet sand beach prohibited. In no instance shall a principal building or an accessory building or structure be located so that it encroaches onto the wet sand beach, observed under normal high tide conditions for a measurement period of at least three days.
   (E)   Administration and enforcement.
      (1)   The Zoning Administrator, or his or her designee, shall be responsible for determining when a building or structure is in violation with the provisions of this section.
      (2)   When the Zoning Administrator observes that a structure appears to be in violation of this section, the Zoning Administrator shall issue and cause to be served upon the owner of and parties in interest in the structure, a complaint stating the charges and containing a notice that an administrative hearing will be held before the Zoning Administrator at a fixed place, not less than 10 nor more than 30 days after the serving of the complaint.
      (3)   The owner or any party in interest shall have the right to file an answer to the complaint and to appear in person, or otherwise, and give testimony at the place and time fixed in the complaint.
      (4)   Any person desiring to do so may attend the hearing and give evidence relevant to the matter being heard. The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Zoning Administrator.
      (5)   After the notice and hearing, the Zoning Administrator shall state in writing the determination as to whether the structure violates this section.
      (6)   If the Zoning Administrator determines that the structure is in violation, the Zoning Administrator shall state in writing findings of fact to support that determination, and shall issue and cause to be served upon the owner of and parties in interest in the structure an order, directing and requiring the owner of and parties in interest in the structure to correct or abate violations of this section within a specified period of time as set forth in the order.
      (7)   In addition to the remedies prescribed by Town Code and by North Carolina law, the Director of Community Development may use any and all remedies authorized and prescribed by G.S. § 160A-175 to enforce the provisions of this section.
   (F)   Permits for structures in violation of this section.
      (1)   No work shall be performed upon, and no development permits shall be approved or issued relating to, any building or structure in violation of this section, except as necessary to eliminate the violation(s).
      (2)   Any work required in order to demolish or remove such a building or structure from the public trust area or public land, or required to perform specific work necessary to comply with directions contained within the notice of violation, may be performed upon issuance of any permits necessary for the work.
   (G)   Town Council authority to temporarily exempt section requirements.
      (1)   In the event that the town may be impacted by a severe storm event that causes significant structural damage and erosion, and also meets the conditions for declaration of a building moratorium as described in § 152.03 (B), the Town Council by declaration may temporarily halt the enforcement of this section to allow property owners and the town to initiate recovery activities that may eliminate some or all of the conditions that would otherwise be considered a violation under the provisions of this section.
      (2)   This exemption shall be re-declared every 60 days if it is the Town Council's intent to continue the exemption in effect.
(Ord. 11-04, passed 9-21-2011; Am. Ord. 13-04, passed 7-17-2013; Am. Ord. 17-05, passed 7-5-2017; Am. Ord. 21-01, passed 6-2-2021)  Penalty, see § 156.999