Judge Re-Affirms Public’s Right to Enjoy Cape Henry Beach

Thursday, October 06, 2011

In a second case involving the public’s right to use and enjoy Cape Henry beach, a judge today affirmed that the city has owned easement rights in the beach behind the Lynnhaven Dunes condominium since 1926.


On Aug. 4, Judge A. Bonwill Shockley confirmed the public’s right to use Cape Henry beach in a case involving a condo at 3232 Page Ave. Today, Judge Shockley ruled that the same result applies to an adjoining property, the 70-unit condominium Lynnhaven Dunes, which sits immediately to the west of 3232 Page Avenue. The owner had sought $2.8 million from the city.


As in the previous case, Judge Shockley today concluded that the city accepted the beach’s dedication from the developer of Lynnhaven Shores in 1926. In the earlier case, 10 witnesses testified that the public has bathed on and strolled upon the beach for decades without objection from nearby property owners.


City Attorney Mark D. Stiles said he was pleased by Judge Shockley’s ruling today. “We have said all along that Virginia Beach residents have the absolute right to enjoy Cape Henry beach, as they have for many years,” Stiles said. “At the same time, the city has the right and responsibility to maintain and operate the beach for our citizens.”


The city filed suit in February 2009 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 northeasters.
  • 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 in Circuit Court 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. 


It was important to establish those rights quickly and conclusively in 2009 through these lawsuits. The city and Army Corps of Engineers planned to protect Cape Henry beach by placing sand on it. If landowners had interfered with the city’s right to protect the beach, the sand replenishment project could have been jeopardized or stopped mid-project. 


In court, the city argued that an emergency existed at Cape Henry and beach replenishment had to begin quickly to protect bayfront properties. In July 2009, Judge Shockley agreed, granting the city’s right to enter the beach for the sand project. The city and Army Corps of Engineers then placed enough sand on the depleted Cape Henry beach to extend it by 100 feet and raise it by three or four feet.


Now, Judge Shockley has affirmed – twice – the public’s rights along the beach.


Two more cases along Cape Henry beach are pending. They involve essentially the same facts and law as the case concluded today.  


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