Today, the North Carolina Supreme Court agreed to review a lower court decision in a property rights lawsuit brought against the city of Emerald Isle by the Pacific Legal Foundation (PLF). PLF filed a petition for discretionary review with the Court in December of 2015. In its order granting the petition, the Court did not make clear on what grounds it is reviewing the case.
At issue is whether local governments in North Carolina must respect private property rights in dry beach land and pay compensation when occupying such lands for public use. J. David Breemer, an attorney with PLF, summarizes the facts of the case:
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 into an “unimpeded Town vehicle lane” for police cars, ATV’s, garbage trucks and the like. It also passed an ordinance that allowed the public to drive and park on all private dry sand areas, like that owned by the Nieses, after payment of a fee to the Town. The facts of the case are set out in more detail here and here.
The result is that the Town converted the Nieses’ dry sand property into a Town expressway and a parking lot and dirt road for the public. without consent and without paying them anything. The Nieses therefore sued the Town, contending it had taken their property, and particularly their right to control or deny access to it, in violation of the North Carolina and United States Constitution.
Learn more about the case here.
The high tide marker is normally at the foot of or into the dunes. No persons or vehicles are allowed in the dunes. If your property stops at the high tide marker you have no right to say who or what travels on the sands on the other side of it. In the event the courts rule in favor of the Nies which in this case are obviously the only people on the whole island taking this to court it would have devasting effects on tourism, the life blood of the area and therefore the businesses of the island as well. The greed of one couple should not be allowed to rule what happens in the whole island. As a resident of the island I am totally against this even being granted a hearing.
I feel that from high tide mark towards the sea should be public access. No one should be able to own the sea! I would like to see how the property survey reads. It may support the homeowners case ….. but it shouldn’t! In my opinion.
I think these two folks have way too much time on their hands. They definitely are not part of the Emerald Isle culture. I hope the hearing is not granted, and think maybe they should consider another beach if they are unhappy.
Homes have sat on this beach for years and never before has anyone complained about tourist or the community around them using the beach that sits in front of their properity. The town has done nothing different to this home than any other home that sits on the beach. Why do a few people have to ruin it for everybody! So sad! I hope these people find some kind of happiness in life, because they must be miserable. I pray the town wins this one!
Eminent domain the SOBs
You miss the point of the true danger if they win. It is clear that they have no claim from the mean high tide line to the water. What they are claiming is that they own from the dune line down to the mean high tide line, the part that beach goers retreat to when the tide is in. The part that is always dry sand. They win and effectively nobody can walk the beach at high tide as you would be trespassing on their private property. unless the local government pays an “extortion” fee, and that is “if” they can be forced to accept it.
If not, then ocean front property owners can block every other citizen from beach access at high tide.
After Hurricanes Bertha and Fran in 1996 Emerald Isle had a severe beach problem primarily in 2 areas:
1) 1st thru 30th streets and
2) the Point.
Each area was estimated to cost approximately 10 Million dollars. This was far to much for each of these areas to pay for beach nourishment. In 2000, Frank Rush (Assistant Carteret County Manager advised the Emerald Isle Board of Commissioners that the County Beach Nourishment Plan was charging oceanfront property owners 50 cents/ $100 property evaluation and every one else 5 cents. Mr. Rush pointed out that areas in Emerald Isle west of Spinnackers Reach to the Point would not receive any sand due to their healthy beaches. The Emerald Isle Board of Commissioners voted to have everyone, including those areas that did not need any sand to pay for beach nourishment. The Carteret County Bond Referendum failed and Emerald Isle decided to do their own beach nourishment again where everybody paid.
The Emerald Isle Board was running out of time to get the surveys done in time to get the beach nourishment started in late 2002 to early 2003. So the Town asked for a voluntary easement from all oceanfront owners for all of the beach from the water to the toe of the dunes. Most people gave the Town the voluntary easement assuming it was only for beach nourishment which later turned out to be all public land in the Town’s view. However 4 property owners elected to give the Town permission to do the beach nourishment without giving them control of the easement. The Town immediately condemned the properties but lost their case thanks to the honorable Claud Wheatly, Jr. The reason the Town lost was because they would not pay for the fair market value of the property which is in the NC laws. Why would the Town go to all that trouble when each of these property owners freely gave the Town permission to cross their property in order to complete the beach nourishment?
Instead the Town licked their wounds and came up with a sneaky way of claiming an emergency 20′ easement from the toe of the dunes to the water which the Town later used for trash pickup, 4-wheel drive vehicles for lifeguards (how could these lifeguards possibly see behind all the canopies and people while driving around folks crossing that 20′) and later thousands of permits for people to drive on their beach property.
The use of ordinances to steal peoples property is the decision the courts will decide on. I’m betting either the NC or US Supreme Court will stand by the protection of property that is in the Constitution and override the gamble the Town of Emerald has taken and it will cost the Town’s taxpayers for their foolishment.
Dry Sand….These Beaches need constant renourishment. This renourishment is typically funded in part by State and federal funding. I do see where the town of EI funded that awful renourishment which they were cited for by CAMA and federal entities. I believe the law which EI has used to create an easement is a little overreaching but they do provide a service of Trash removal and Emergency Services. I think the off season driving on the beach should be banned but that is just my opinion. That being said it is not possible for any single property owner to own any part of that “Dry Sand” The beach is a resource reserved for the PUBLIC. This battle has been fought numerous times in many states and land owners have lost.
Beaches need constant renourishment. This renourishment IS funded by the State and Federal government. I believe NO ONE should own property ocean side of the furtherest seaward paved road. Additionally any properties there now should NOT be allowed to obtain wind or flood insurance. This would allow for a natural seashore and full public use.
Additionally this would lower everyone’s insurance.