April 15, 2016

NC Supreme Court agrees to review beach access takings case

By J. David Breemer Senior Attorney

Today, the North Carolina Supreme Court agreed to review the case of Nies v. Town of Emerald Isle, a beach property rights dispute pitting a couple’s right to limit access to their beachfront land against a local government’s desire to open it up the land to public and town driving.

The case arises from Emerald Isle, a barrier island on North Carolina’s Atlantic shore. Gregory and Diane Nies own a residential, beachfront lot that extends seaward to the high tide mark. Their ownership includes the dry sand beach area in front of their home.

After they acquired the property, the Town of Emerald Isle enacted an ordinance that made a 20-foot ribbon of their dry sand beach area into an “unimpeded Town vehicle lane” for police cars, ATV’s, garbage trucks and the like. It also passed an ordinance that allowed the public to drive  and park on all private dry sand areas, like that owned by the Nieses, after payment of a fee to the Town. The facts of the case are set out in more detail here and here.

The result is that the Town converted the Nieses’ dry sand property into a Town expressway and a parking lot and dirt road for the public. without consent and without paying them anything. The Nieses therefore sued the Town, contending it had taken their property, and particularly their right to control or deny access to it, in violation of the North Carolina and United States Constitution.

In court, the Town argued that it did not have to pay just compensation for invading the Nieses’ land because an arcane legal doctrine called the “public trust doctrine” implicitly burdened the Nieses’ title to dry sand beach areas. The Town claimed the doctrine imposed an unwritten pubic trust easement on the Nieses’ land that allows the Town to treat it as its own.  The problem with this position is that the North Carolina Supreme Court has never applied the public trust doctrine, and the public access rights it protects, to private land. It has always limited the doctrine to state-owned wet beach areas. More on that issue here.

The Nieses lost in the trial court and Court of Appeals. With PLF representation, they then petitioned the North Carolina Supreme Court to hear their case.   The Court has now agreed to do so.  The central issue is whether local governments in North Carolina must respect private property rights in dry beach land and pay compensation when occupying such lands for public use.  The case will decide whether governments can escape the constitutional duty to pay compensation for opening up beachfront land to unwanted public and government access by relying on a novel “public trust doctrine” easement that is not in the Nieses’ title and which has never before applied to private areas.

The Nieses are represented by Pacific Legal Foundation attorneys and local counsel with North Carolina’s  Morningstar Law Group.   PLF applauds the N.C. Supreme Court’s  decision to wade into this important constitutional property rights dispute, and look forward to defending the Nieses’ rights.

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Nies v. Town of Emerald Isle

The Town of Emerald Isle, North Carolina, passed ordinances allowing the general public and town officials to use the Nies family’s private beach land, without compensating them. State courts upheld these ordinances because they believed a 1998 state law redefined all private dry sand beaches from private land into a “public trust” area open for public driving and access. PLF, representing the landowners, argued that both the ordinance and the state law effected an unconstitutional taking by remaking the entire coastline of separately divided and owned dry beach parcels into a uniform public trust beach which the public and the government can use and drive on without owner consent or compensation. With the state courts unwilling to compensate the property owners, PLF is seeking review in the U.S. Supreme Court.

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