August 19, 2015

NC beach takings case to get a hearing

By J. David Breemer Senior Attorney

On August 24, 2015, the North Carolina Court of Appeals will hold an oral argument in the important beach takings case of Nies v. Town of Emerald Isle. That case, described more fully here, involves a Town’s attempt to re-define a strip of a couple’s dry sandy beachfront land as a Town vehicle service lane and a public beach driving road.   The Town even went so far as to sell permits to the public to drive on the Nies’ and others’ private land during part of the year, generating $87,000 a year for the public coffer.

The Nies sued the Town, claiming it had unconstitutionally taken its property. The Town denies this, but it admits that Town and public vehicles are in fact driving on the Nies’ and other property without the owners’ consent or any pre-existing right, such as an easement. Instead, it claims that an arcane legal doctrine —  the public trust doctrine  — gives the Town a blank check to use the Nies’ land.  Yet, the Town can cite to nothing in North Carolina’s background law or in the Nies’  title documents that makes their private dry beach land into a public thorough-fare. Certainly, there is no authority that gives the Town the right to convert a strip of private land into “public trust”  road without just compensation.

Next week,  PLF attorneys will present the Nies’ case to the Court of Appeals in Raleigh, N.C.   Hopefully, it will agree that the Nies’ constitutional rights trump the Town’s desire to convert their private dry beach area into a road.

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