Virginia Supreme Court Confirms Public’s Right to Use and Enjoy Cape Henry Beach

Friday, November 02, 2012

The Supreme Court of Virginia has confirmed the public’s right to use and enjoy Cape Henry beach.  In two opinions issued Thursday, the court ruled that because the public has used and the city has maintained Cape Henry beach for decades, the City of Virginia Beach holds a recreational and maintenance easement on the beach.


“In the present case, there is ample evidence that the public has used the entirety of Cape Henry Beach since 1926, the City has patrolled and maintained the property for over 30 years, and the Condo Association never objected to the City’s exercise of dominion and control,” Justice Cleo E. Powell wrote in the majority opinion. “Thus, there is sufficient evidence proving that there was an implied dedication [of an easement] and acceptance thereof by the City.”


The court cited testimony that the city has patrolled Cape Henry beach since at least 1976 and that the city has maintained the beach since at least 1980, including daily garbage removal, raking the beach, grading the beach and annually planting new beach grass and removing dead sea life. The court noted that Cape Henry was sometimes so crowded with people enjoying the beach that maintenance workers couldn’t drive vehicles on it.


City Attorney Mark D. Stiles said he was pleased with the court’s ruling: “We have said all along that Virginia Beach residents have the absolute right to enjoy Cape Henry beach, as they have for many years.”


The Supreme Court ruled 4-3 in favor of the city. It ruled against the city on one narrow point. The court ordered a new hearing to determine how much the city must pay to the Lynnhaven Dunes Condominium Association for riparian or littoral rights – that is, a property owner’s right to enjoy the water adjacent to his property. The city will argue that the value of these rights at Cape Henry is minimal based on existing public use.


The case began in 2009 when the city filed suit in Virginia Beach Circuit Court for two purposes:


·         To allow for sand replenishment at Cape Henry beach. At the time, the beach was severely eroded. Homes, condominiums and public infrastructure along that stretch were threatened by nor’easters.


·         To re-affirm the public’s right to enjoy Cape Henry beach. Four property owners had claimed the beach was private and had posted signs forbidding the public to enter. The city asserted a public recreation and maintenance easement stretches across the beach.


Cape Henry beach extends for two miles along the Chesapeake Bay, from the Lesner Bridge to First Landing State Park. The city filed lawsuits against four landowners to affirm the public’s rights. All other landowners at Cape Henry had previously confirmed the public’s rights by granting express easements. 


The full text of the Supreme Court opinions are here, at the court’s website. The cases are 3232 Page Avenue Condominium Unit Owners Association v. City of Virginia Beach, and Lynnhaven Dunes Condominium Association v. City of Virginia Beach.


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