May 6, 2015

NC town's webpage defends invasion of beachfront property in PLF case

By J. David Breemer Senior Attorney

In Nies v. Town of Emerald Isle, PLF attorneys represent North Carolina property owners whose dry beach front land has been converted into a roadway for Town and public vehicles by Town laws. The owners — the Nies — sued the Town of Emerald Isle, asserting that it had unconstitutionally taken their property by authorizing an ongoing vehicle invasion. A comprehensive summary of the case is here.

With briefing in the North Carolina Court of Appeals now complete, the Town has created a page on its website about the dispute, which it recognizes as an “[]important case regarding public trust beach areas.” The purpose of the webpage seems to be to ridicule the Nies’ claims while simultaneously reassuring other citizens that the Town really respects property rights.  Perhaps not surprisingly, it is full of misinformation.

The Town’s page initially says that its “2010 ordinance [one of the laws the Nies challenged] did not create a road but simply required that [a] 20 feet area of the public trust beach be free of obstructions,” like private beach equipment. This rule, it claims, simply allows emergency vehicles to make beach rescues.   This is false.

The twenty-foot area to which the Town refers is a twenty-foot strip of land running horizontally along the dry sand beach.  Under the 2010 Town law, this area is not just to be kept free of obstructions, it is to serve as a “vehicle lane” for use by Town cars and trucks at any time, for any reason. And in fact, garbage trucks, construction vehicles, ATVs, and police cars regularly drive on and park on the subject area.  It is hardly only for emergencies.

Even more troubling is the Town’s claim that the twenty-foot lane it has created is part of the “public trust beach,” i.e., on public property.  If this is true, there would be no lawsuit.  But the fact is that the Nies own the subject dry sand area. The Nies hold title to the dry sand area within the twenty-foot lane free and clear of any restriction allowing others to use or drive on the Nies’ land.  No court has ever held it to be part of the public trust beach (which includes only the wet beach area). The whole reason for the Nies’ suit is that the Town has unilaterally reclassified private dry land as a public beach and now uses it as such.  But the Town’s page discusses none of this.

It does assure readers that the Nies case has “absolutely nothing to do with beach driving.”   Wrong again.  The Nies have challenged a 2013 Town law (different from the 2010 twenty-foot vehicle lane law) which allows the public to drive on all dry sand areas, including those owned by the Nies, upon paying a fee to the Town.  The 2013 law opened up the dry sand area closest to the Nies’ home- again, land they own–  to public driving for the first time. In 2014, the Town collected $87,000 by selling permits for the public to drive on private dry sand areas, like the Nies.’  It is understandable that the Town wants this cash cow taken off the judicial table.  But it cannot be, because, for the Nies, the permitted public driving and parking means partying, trash and more Town service vehicles on their land.

But the Town’s webpage urges us not to worry, for the Town “has great respect for private property rights and does not seek to harm the Nies or any other oceanfront property owner in any way.”  This rings as hollow as a beach drum since it has repeatedly entered the Nies’ land and sold permits for the public to do the same.  As the page admits, the Town’s heart beats for public and governmental  beach access, not constitutional rights: “The Town wants everyone [including, apparently,  garbage collectors and hotdogging four-wheelers] to be able to enjoy the beach experience.”  This is fine. The problem is not the Town’s goal, it is how it has chosen to advance it, namely, by requiring the Nies to donate their beach land without compensation.

In a final flourish, theTown asserts that its acts are all “allowed by [North Carolina] law for decades.”  Indeed, its page says it is “nonsensical” to believe the Town has violated private rights.  This would have more credibility if the Town could point to any state law going back the last two centuries that allows public or Town driving on privately-owned dry sand beach areas.  But it cannot.  It relies on a state statute, N.C.G.S. 77-20, but that law explicitly says that court cases decide the public/private beach boundary issue.  So what do the cases say? That the public trust beach ends at the wet sand beach. No case has ever held that upland, private dry sand areas are also public trust beaches open for driving.

The Town cannot even point to a case allowing public pedestrian access on private dry sand areas.  Yet, it continues to tell the public that dry sand areas are public areas under state law.  It is not the only the governmental body in North Carolina to say this, but there is no safety in numbers when it comes to misinformation.   On its webpage, theTown should post the state court decisions that support its claim that private dry sand areas are public trust areas available for driving, or stop publicizing that claim. After all, it is “nonsensical” to represent that private parcels are a public area when the owners’  titles and every relevant judicial decision says the opposite.

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