Press Release

North Carolina Supreme Court will hear PLF’s Nies case

Town of Emerald Isle, N.C.; April 15, 2016: The Supreme Court of North Carolina announced today that it will hear the important property rights case, Nies v. Town of Emerald Isle, in which Pacific Legal Foundation (PLF) represents an Emerald Isle couple who sued after the town imposed a 20-foot-wide government driving lane across their privately owned sandy beach property. The Town also enacted and applied a law allowing the public to park and drive on the couple’s land upon paying a fee to the Town.

Donor-supported PLF is a national public interest legal organization that defends limited government and property rights in courts across the country. PLF represents beachfront homeowners Greg and Diane Nies, free of charge, in challenging the Town government’s unconstitutional seizure of their property rights. PLF, which is headquartered in Sacramento and maintains an Atlantic Center based in Florida, is representing the Nies along with Keith Anthony, Esq., and North Carolina’s Morningstar Law Group.

North Carolina’s High Court accepted PLF’s petition for review after an adverse ruling from a state court of appeal.

“The state Supreme Court’s announcement should be welcomed by everyone who values fundamental property rights,” said PLF Principal Attorney J. David Breemer. “The issue here amounts to Property Rights 101: Government is not allowed to invade property for public use without compensation — and that goes for property at the beach as much as anywhere else.”

Emerald Isle officials created a government roadway across private beach land — and didn’t pay the owners a dime in reimbursement

The Nies own a beachfront house, which they purchased in 2001, on a lot that includes all the sandy beach property from the mean high water mark, inland to the first line of dunes. PLF and the Nies are challenging the Town’s takeover of the Nies’ sandy beach property, for government and public use, without any compensation as required by the Constitution.

Specifically, through a 2010 ordinance, the Town has given itself an exclusive, 20-foot-wide driving lane across the Nies’ sandy beach property. Town vehicles now cruise across the Nies’ land at all times of the day, leaving deep ruts that destroy vegetation, make it difficult for the Nies to walk on the property, and endanger their grandchildren and others who come to visit.

Moreover, a 2013 Town ordinance creates a toll road across the same area (and more) of the Nies’ land, allowing the public to drive across it, from September to May, for a fee to the Town. Trucks and cars now tear through the Nies’ sandy land, “hotdogging” and leaving trash.

“When government creates a road on private property, the Fifth Amendment says the owners must be compensated,” Breemer noted. “Emerald Isle officials suggest this rule doesn’t apply to them because beachfront property is different. But, as PLF will argue at the state Supreme Court, they are clearly wrong. The Constitution prohibits government confiscation, even along the shore.”

The Town’s “public trust” argument is all wet

In trying to justify failing to pay the Nies for taking over the use of their private beach property, the Town has come up with an inventive — and baseless — theory. It claims that title to all privately owned beachfront land between the dunes and the mean high water mark, including the Nies’ land, is subject to an unwritten “public trust” easement that allows the Town to occupy that area without paying the owners.

“The city’s argument amounts to a license for a sweeping seizure of people’s private property along the coast,” said Breemer. “It permits the government to take over all private land seaward of the dunes right away. As time goes on, it could continue to grab more inland private property as erosion causes the dunes (and the alleged public trust easement) to migrate landward. It’s a formula for seizing people’s backyards first, and confiscating their beach houses later when they come to be on a dry sand area, and not giving them a red cent in return.

“Beyond being a shocking example of government disrespect for people’s private property, the Town’s arguments also happen to be legally unsupportable,” stated Breemer. “The public trust doctrine has never been held to allow government to pick a slice of private land for its exclusive use. Rather, as defined by consistent case law, the doctrine applies only to state-owned tidelands that are seaward of the mean high water mark. The Town is trying to twist and stretch this doctrine to cover private land to which it has never applied.

“Emerald Isle officials can’t evade the Fifth Amendment with fanciful distortions of the public trust doctrine,” said Breemer. “As with any normal eminent domain action, if the local government wants to use the Nies’ private property for a town or public road, the Nies must be paid. In America, government can’t take our homes, our yards — or our privately owned beach land — for free.”

Statement by Greg Nies

Greg Nies and his wife, Diane, are both retired from careers in data management.  They have two grown children and two grandchildren.  Retiring to their Emerald Isle beach home was a dream for them — until the Town took away their property rights.

“We both worked hard all of our lives, starting as teenagers,” said Greg.  “We saved from our hard earned wages to buy this place, in 2001.  After long careers working in offices all day, we wanted to retire to someplace that had good weather year-round and lots of opportunity to walk on the beach in the fresh air.

“We felt it was our dream home,” he noted.  “We pay the mortgage and taxes.  Yet it is now being taken away from us by the Town.

“Since the Town’s creation of a government thoroughfare across our land, it is no longer the beautiful beach we fell in love with,” he said.  “It has become a rutted mess devoted more to vehicles than people.  Trash trucks and other Town vehicles are driving by all the time.  We worry about our grandchildren’s safety due to Town approval of driving on our property.  It is nearly impossible for us to walk on our own  beach property due to the extreme ruts.  Diane has had hip problems (sciatica).  I have heart problems that have become quite serious now due to the stress of the Town taking of our property.

“We understand the Town has the right to condemn for public use, but they have to pay market value,” he continued.  “We are grateful that Pacific Legal Foundation has joined us to fight for the basic property rights that we are being denied.  In fact, we’re fighting for everyone’s property rights, because if government officials can make up reasons to take ours away, it can happen to other homeowners, wherever they live.”

About Pacific Legal Foundation
Donor-supported PLF is a watchdog legal organization that litigates for limited government and property rights in courts nationwide.  PLF represents all clients without charge.

Case Attorneys

J. David Breemer

Senior Attorney

David (Dave) Breemer developed a passion for liberty while reading classics such as John Locke’s Two Treatises of Government and Thomas Paine’s The Rights of Man, as he pursued a … ›

View profile

Meriem L. Hubbard

Senior Attorney

Meriem Hubbard has been an attorney at Pacific Legal Foundation since January 2000.  She litigates cases involving property rights, public finance issues, and preferences in government hiring, contracting, and education. … ›

View profile

Case Commentary

See all posts

By J. David Breemer

PLF asks Supreme Court to hear massive beach land grab case

This week, Pacific Legal Foundation attorneys filed a Petition for Certiorari asking the United States Supreme Court to review the case of Nies v Town of Emerald Isle, discussed more here  The Petition presents the important question of “whether the Takings Clause permits a state to statutorily redefine an entire coastline of privately owned dry beach parcels as a “public trust” area open for public use, without just compensation?”

As this blog explained here, and here, this case arising from the Town of Emerald Isle’s enactment of ordinances allowing the public and town officials to use the Nies’ privately owned dry beach land, without any compensation

The state courts held the

Read more

By J. David Breemer

NC Supreme Court agrees to review beach access takings case

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

Read more

By J. David Breemer

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

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)

Read more