PLF defends Emerald Isle beach homeowners against a “taking” by town officials

Town of Emerald Isle, N.C.; March 19, 2015: This week, the nation’s leading property rights defense organization stepped in to represent an Emerald Isle couple who are fighting the town’s unconstitutional imposition of a 20-foot-wide government driving lane across their privately owned sandy beach property.

Donor-supported Pacific Legal Foundation (PLF) is a public interest legal organization that defends limited government and property rights in courts across the country.  Because of the importance of the Emerald Isle case, PLF now 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.

Launching its representation this week, PLF filed the opening brief in the Nies’ case to the North Carolina Court of Appeals.

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.

“PLF’s mission, nationwide, is to defend constitutionally protected property rights,” said PLF Principal Attorney J. David Breemer.  “We’ve come to the aid of Greg and Diane Nies because their rights are literally being driven over by Emerald Isle’s Town government.

“When government takes private property for a public use, the Fifth Amendment says the owners must be compensated,” Breemer noted.  “Stealing isn’t allowed.  Emerald Isle officials suggest this rule doesn’t apply to them when they’re taking over private property at the beach.  But PLF has entered this case to let them know they’re wrong.  The Constitution prohibits government confiscation, no matter where the private property is located.”

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 city’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 city is trying to twist and stretch this doctrine to cover private land to which it has never applied.

“We’re asking the courts to give the government of Emerald Isle a lesson in basic civics,” Breemer said.  “Emerald Isle officials can’t evade the Fifth Amendment with fanciful distortions of the public trust doctrine.  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.