PLF files opening brief in critical, new NC beach takings case Nies v. Town of Emerald Isle

March 19, 2015 | By J. DAVID BREEMER

Pacific Legal Foundation (PLF) attorneys have filed an Opening Brief in the North Carolina Court of Appeals in Nies v. Town of Emerald Isle, a case involving a potentially far-reaching beach property rights battle.  The dispute pits Greg and Diane Nies — a beachfront property owning couple — against a North Carolina beach town and its attempt to classify the Nies’ dry sandy backyard as an expressway for Town service vehicles and a road and parking lot for the public. The case is now at the center of a larger, ongoing controversy within North Carolina, and the country as a whole, about the scope of private property rights on the beach.

Emerald Isle is on a barrier island on North Carolina’s Atlantic shore.  It is a popular summer vacation spot, and Greg and Diane Nies began vacationing there in the 1980’s. Twenty years later, they bought a beachfront home and began to live In Emerald Isle.  According to the Nies’ deed and state law, their property line runs down to the mean high water mark and thus includes the dry sand lying between the first line of dunes near their home and the mean high water mark.   The tidelands (wet beach) seaward of the mean high water mark (and of the Nies’ dry sandy property) are State-owned beaches.

For many years after buying their property in 2001, the Nies enjoyed walking from their home, across the dunes and their dry sand property and down to the water where other people mingled and strolled.view

But in recent years, the Town of Emerald Isle has radically diminished the Nies’ property — and their experience.  The first inkling of trouble came in 2003-2005 when the Town embarked on a beach renourishment project on Emerald Isle beaches. In connection with that effort, it tried to secure easements from beachfront property owners that would have opened up all privately owned dry sand areas to perpetual Town and public use. The Nies resisted, however, and the Town was never able to secure such an easement from them.

In 2010,  the Town tried a different tactic. It passed an ordinance that created an “unimpeded Town vehicle lane” on all dry sand areas lying between the first line of dunes and twenty-feet seaward of the dunes. This road crosses the Nies’ dry sand property, essentially running through their backyard. During May to September, the law prohibits anyone from occupying the twenty foot lane (including the land’s owners) so that Town vehicles can freely drive on it and service summer crowds enjoying the Atlantic ocean.

Additionally, in 2013, the Town enacted a Beach Driving Ordinance that expanded the permitted public beach driving area to cover the entire area of privately-owned dry sand in Emerald Isle. Between September and May, the public is permitted to drive and park on the Nies property upon paying a fee of between $50-100 to the Town for a driving permit.  Town and government officials also have driving rights and are exempted from seasonal limitations and fees.tractors

The result of these laws is that the Nies’ dry sand property is now a Town expressway and a parking lot and dirt track for the public. Town garbage trucks, police cars, construction vehicles and private vehicles now regularly cross and park on the Nies’ land. The Town has never paid the Nies for the right to use their property or offered to share the approximately $80,000 it makes each year from selling permits to the public to drive on the Nies’ and others’ land. The Nies therefore sued the Town, contending it had taken their property in violation of the North Carolina and United States Constitution.

In court, the Town did not deny that the Nies and other private citizens own the dry sandy beach areas it has occupied.  But it claims all dry sand beach lands, including the Nies’, are impressed with an unwritten “public trust doctrine” easement that allows public and Town use of the area, without the consent of the landowners or payment of compensation.  The public trust doctrine is a legal concept that typically ensures the public has access to State-owned tidelands seaward of the mean high water mark, but the Town claims it extends to the vegetation or dune line in Emerald Isle. As a result, it believes all private dry sand areas are public trust beaches and that the owners do not hold the normal right to keep the government (or strangers) off their land.

The Town’s argument prevailed in the trial court, but the Nies have appealed. In the Court of Appeals, they are represented by Pacific Legal Foundation attorneys and local counsel with North Carolina’s  Morningstar Law Group.   PLF has, of course, a long and successful history of fighting for private property rights on coastal areas throughout the nation. PLF won the landmark Supreme Court case of Nollan v. California Coastal Commission, which rejected a government agency’s attempt to require public access to beachfront property as a condition of issuing a coastal building permit.  More recently, PLF attorneys prevailed in the Texas beach case of Severance v. Patterson.  There, the Texas Supreme Court issued a decision striking down Texas’ “rolling beach easement” policy, a scheme under which the State would convert private coastal land into a public beach whenever a storm denuded it of vegetation and made it dry sand. For more on that case, see here.

North Carolina is now the epicenter of the conflict between property rights and governmental demands for easy and free access to beachfront land, and PLF had joined the battle once again.  The Town of Emerald Isle’s law — and its narrow view of beach property rights — is wrong and unconstitutional. The Nies bought a title free of any public trust easement, and they  accordingly have a constitutional right to control the time, place and manner of any governmental or public access to thelr land.  This not just a property right; its a privacy right. If the government wants to turn the Nies’ land into a Town road or public parking lot, it must pay for the right.

PLF looks forward to defending these basic liberty principles, and the Nies, in the North Carolina Court of Appeals, state Supreme Court, and United States Supreme Court, if necessary. The government must respect landowners’ constitutional right to keep their property private –even when the land is high demand coastal property – or pay just compensation.