Judge Confirms Public’s Right to Use and Enjoy Cape Henry Beach

Thursday, August 04, 2011

A judge today confirmed the public’s right to use and enjoy Cape Henry beach. As a result, the City of Virginia Beach will not have to pay a condominium association to acquire those rights for the benefit of the public.


Circuit Court Judge A. Bonwill Shockley ruled in favor of the city today in the case of City of Virginia Beach v. 3232 Page Avenue Condominium.  


Judge Shockley concluded that the city accepted a dedication of the beach in 1926, and that the property was re-dedicated to the city after 1956. She also noted testimony from 10 witnesses that the public has fished from, bathed on and strolled upon the beach for decades without objection from nearby property owners.


City Attorney Mark D. Stiles said he was pleased that Judge Shockely confirmed the city’s position. “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. 


 “We tried very hard to work out our differences without litigation,” then-City Attorney Les Lilley said at the time. “Failing to protect Cape Henry beach is not an option.”


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.


Meanwhile, the legal cases moved forward.


The first case, involving the condo at 3232 Page Ave., was tried in June. The city claimed the beach easement was worth $4,000. The owner sought $429,020. The jury awarded $152,000 – clearly a compromise, but much closer to the city’s figure. The jury also found that the condo owners had not been damaged by the city’s easement.


The final phase of the trial concluded today. Earlier, the city had asked Judge Shockley to confirm the public’s rights to Cape Henry beach and negate the jury award. Today, the judge agreed.


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