PLF joins North Carolina beach battles

July 24, 2012 | By J. DAVID BREEMER

Texas isn’t the only state  that has been attempting to convert private beachfront land into public property through the use of novel legal theories. North Carolina and its political subdivisions have also moved in the same, unfortunate direction.  And once again, PLF is going to court on behalf of owners of beachfront property to try and stop this beach land grab.

In North Carolina, local governments are claiming the “public trust doctrine” allows them to impose public beach access on private lots of beachfront land without just compensation or due process. While the public trust doctrine normally grants beach recreational rights to the public in all tidelands seaward of the mean high tide line, North Carolina towns have expansively defined the public trust doctrine to extend farther inland –all the way to the first line of natural vegetation. This theory allows the public trust doctrine to cover private and lawfully developed dry beach parcels, as well as “wet beach” areas seaward of the high tide line.  Any structures on the subject parcels then become subject to uncompensated removal.

At the forefront of this battle between private and public rights along the Atlantic coast are two current PLF cases, Town of Nag’s Head v. Toloczko and Sansotta v. Town of Nag’s Head.


In Toloczko, the Town of Nag’s Head formally declared the Toloczkos’ family beach cottage to be a nuisance because it suffered minor damage during a 2009 storm, and (more importantly) had allegedly come to be located on “public trust lands” because it was seaward of the first line of vegetation.  The Town gave the Toloczkos 18 days to remove the cottage, and declared it would not issue any repair or building permits for the cottage. When the Toloczkos refused to demolish their home, the Town began assessing daily fines.  Later, the Town passed an ordinance that prohibited any structures that had been declared to be a public trust nuisance, and explicitly barred Town officials from issuing any permits for such structures except those needed to demolish them. This made the Toloczkos’ land into a public beach park and rendered their cottage economically useless. Ultimately, the Town sued in state court, seeking an order of abatement to remove the cottage and an award of civil fines against the Tolozkos.

The Toloczkos then removed the case to federal court and filed multiple counterclaims, including allegations that the Town had violated their federal constitutional rights.  However, the district court abstained from ruling on the Toloczkos’ claims because it believed doing so would require it to resolve unsettled issues pertaining to the nature and scope of the North Carolina’s “public trust doctrine,”  a task the court felt was better suited to state courts.

Representing the Toloczkos on appeal, PLF filed an opening brief in the Fourth Circuit Court of Appeals on July 20, 2012.  The brief argues that the federal court erred in abdicating its duty to determine whether the Town has violated the Toloczkos’ constitutional rights. In particular, PLF’s brief argues that the District Court had to resolve the Toloczkos’ procedural due process, equal protection, and takings claims, and could not relegate such claims to the state courts, because those constitutional claims rest on settled federal legal principles, not state rules, over which the court is bound to assert jurisdiction.

PLF also recently filed an opening brief in the Fourth Circuit on behalf of the property owners in the companion case of Sansotta v. Town of Nag’s Head.  That case also involved the Town’s attempt to remove lawfully built beach cottages, without just compensation or due process, so that the public could have the land for beach access and recreation. The mayor of the Town had been elected after promising to get rid of the cottages. And when a storm hit in 2009, the Town acted by declaring six cottages to be a nuisance because they came to be seaward of the first line of vegetation– which meant they were on public trust lands, according to the Town. Again the Town denied all permits and began assessing daily fines for every day the cottages were not removed. The Town gave the property owners no hearing before declaring their land to be open to the public, ordering their cottages removed and assessing daily penalties which now total more than $500,000. The cottage owners sued in state court, but this time the Town removed their claims to federal court.

Although the District Court took jurisdiction over the Sansotta case, it rejected the cottage owners’ claims. It concluded in part that the claims failed because the owners had to exhaust state remedies or did not have constitutionally protected property interests. The court also held that their federal takings claim was unripe because the owners did not exhaust state court litigation before their takings claim came before the federal court. PLF’s brief on appeal argues that the Town violated the property owners’ due process rights by failing to give them any sort of hearing before it deprived them of their interests in their cottages, and that potential state court remedies cannot bar the cottage owners from seeking relief in federal court for federal constitutional violations. As for the takings claim, PLF’s brief argues that the Town waived Williamson County’s “go to state court first” ripeness barrier because it voluntarily removed the plaintiffs’ takings claims from state court and thereby prevented them from pursuing compensation in state court in accordance with Williamson County’s ripeness doctrine.

Stay tuned. These beach battles are still in their infancy. As it successfully did in Texas, PLF will fight as long as it takes to hold North Carolina governments accountable to the Constitution when it tries to take private beachfront land for public use, and to stop those governments from using novel interpretations of state law to try to get around constitutional property protections.