December 29, 2015

PLF asks NC supreme Court to decide "public trust" beach takings case

By J. David Breemer Senior Attorney

On December 9, 2015, PLF attorneys asked the North Carolina Supreme Court to review the Court of Appeals’  published decision in Nies v. Town of Emerald Isle. In that case, described more fully here, the Court of Appeals concluded, for the first time in state history, that the public and government may enter and occupy  privately owned dry sand beach areas, without owner consent, under the theory that the “public trust doctrine” applies to such lands.

The public trust doctrine, and the public beach uses it allows, has historically been limited to  state-owned wet beach areas below the mean high water mark. However, relying on an ambiguous (at best) statute that had never been construed to effect  private/public trust beach boundaries, the Court of Appeals held that the public trust beach extended to private property landward of the mean high water mark. From there, the court held that it was not an unconstitutional taking for the Town of Emerald Isle to issue permits (for a fee) to the public  allowing strangers to drive and park on the dry sand portion of Gregory and Diane Nieses’ beach front land.  It similarly held it was not a taking for the Town to authorize its own service vehicles — garbage trucks, ATV’s, police cruises, and beach bulldozers — to use the Nieses’ land as a  beach driving lane.

Because the Court of Appeals’ decision involves a substantial constitutional question; namely, whether it is an unconstitutional taking for the Town to leverage the public trust doctrine to commandeer private land for public beach use, without compensation, PLF attorneys have filed an “appeal as of right” to the N.C. Supreme Court, on behalf of the Nieses, as allowed by rule.  But they also filed a Petition for Discretionary Review, asking the court to review the Court of Appeals’ erroneous decision because it involves highly significant beach access and property rights issues that effect the public, government and property owners along the length of the state’s Atlantic coast.

The specific questions PLF’s Petition presents to the N.C. Supreme Court are:

1. Do the public beach access rights inherent in the common law “public trust doctrine” apply to privately owned dry beach lands lying above the mean high water mark, and permit the government and public to constitutionally occupy such lands; or do public trust rights end at the mean high water mark, the boundary of state-owned tidelands?
2. Did the Court of Appeals err in holding that N.C.G.S. § 77-20—a statute never previously construed by the courts—modified common law precedent so as to extend the public trust beach to inland private parcels, even though the statute itself defers to the common law and a construction expanding the public beach to private land is an unconstitutional taking?
3. Did the Court of Appeals err in holding that the Town did not unconstitutionally take the Nieses’ dry sand private property by authorizing the public to drive and park on the land (for a fee to the Town) and/or by giving the Town itself the right to drive and park on private land, pursuant to Town ordinances purportedly implementing the public trust doctrine?

PLF and the Nieses hope and expect that the North Carolina Supreme Court will agree to review these important constitutional issues sometime early next spring.

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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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