August 23, 2016

Setting the town straight on North Carolina beach dispute

By J. David Breemer Senior Attorney

The dry beach takings case of Nies v.Town of Emerald Isle, described more fully here, continues to generate debate in North Carolina. Recently, the Manager of Defendant Town of Emerald Isle published an article criticizing the Nies’ s view of the case. The following PLF rebuttal to the Town Manager’s column was published Sunday, August 21, 2016 in the Cateret County News-Times.

RESPONSE TO EI MANAGER: TOWN CONTINUES TO HIDE FACTS AND DISTORT WORDS IN BEACH DISPUTE

By J. David Breemer *

Mr. Frank Rush, Town Manager for Emerald Isle, contends that I misled readers in a description of a dispute between Gregory and Diane Nies and the Town of Emerald Isle. That beach property rights case is now before the North Carolina Supreme Court

Sadly, Mr. Rush takes my words and the principles at issue in the case out of context to prove his points.

Let’s start from the beginning. The Nies claim that the Town has taken their property without due process through two injuries. First, they complain that the Town passed and enforced a law in 2010 which gives the Town a twenty-foot service road on the Nies’s dry sandy land (the Town does not contest it is private land). The road is regularly used by all kinds of Town vehicles. It is not just for emergency situations. Second, the Town sells permits for the public to drive, park and party on the Nies’s and others’ property, without their permission. It makes about $80,000 a year doing this. When the Nies bought their property in 2001, the Town code did not allow this; it only allowed public driving on “hardpacked” sand — the wet beach owned by the State.

The Town agrees there is no right-of-way on the Nies’s title and the Town did not use eminent domain or consent to get one. Instead, it claims that an obscure legal concept called the “public trust doctrine” allows it to control the Nies’s land as a road, without giving them a day in court first or compensation.

The problem is that the North Carolina Supreme Court and every other coastal state except one has decided the public trust doctrine only covers state-owned wet beaches. There are other concepts in the law that allow use of upland private dry beach areas after a court hearing, but the Town did not use these.

Since the “public trust doctrine” does not apply to the Nies’s private, dry land and the Town has not proven or sought any other access rights, the Nies believe they have the normal property right to control use of their land. However, they have not tried to stop pedestrian access; they permit it. They did not sue over it. Their beef is with the Town’s assertion that it can grab their land for use as a non-emergency road with the stroke of a pen, and without reimbursement.

The case does have statewide implications because it will decide if the Constitution stops at the coast, as the Town seems to claim. It will decide if government must follow the law when seeking to use private coastal land (just as owners have to follow the law when using their own land) or whether it can simply declare such land to be a government area. The case may also have an impact on the public trust doctrine, but will not affect more general public access, such as that which already exists because of beach re-nourishment projects and agreements, through eminent domain, owner consent or through easements proven in court.

The public trust doctrine access issue is itself in play only because of the Town’s decision to make it the issue. Now that the Nies are exposing the fallacy of that theory, the Town turns to the public access fear card. It remains silent on the damage its garbage trucks do to the Nies’s property, the money it makes selling access to their land, and its failure to seek or claim access under other theories besides the public trust doctrine. Going a little lower, the Town suggests that the Nies’s views arise from an out-of-state source, rather than from principles. But constitutional rights do not vary with locality; they are national rights. If background matters, one might suspect that the Town Manager’s ardent plea for a right to invade the Nies’s land comes from his own New Jersey background, as that state is the only one that considers private land to be a public trust doctrine access area.

In any event, the Town’s latest rhetoric is just as empty as its public trust doctrine theory. “Sunbathing” won’t stop across the state if the Nies win, as the Town’s website exclaims. A decision for the Nies will force the Town to do the right and constitutional thing: ask, pay compensation or go to court before putting a heavily used service road on private land. If the government can ignore such basic due process protections just because it thinks it has a really good reason, property throughout the state is at risk.

What to read next