North Carolina town grabs beachfront property without compensation

The joy of owning beachfront property has become a nightmare for a North Carolina family embroiled in a nasty dispute with a local government intent on engaging is some old-fashioned land-grabbing.

When Greg and Diane Nies bought their property in Emerald Isle, N.C., they did so with the understanding that, under traditional North Carolina law, the “wet” beach is public property, but the dry sand area lying upland from the wet beach – where their property is located – is privately owned.

But Emerald Isle has recently adopted several ordinances that make all private dry sand areas into a road available for use by the town and the general public. One Emerald Isle ordinance even creates a 20-foot-wide express lane on the couple’s dry-sand property for town-owned vehicles of all varieties. Garbage trucks, police cars, and all-terrain vehicles now regularly drive through the Nies property.

Taking Property Without Compensation

The couple has filed a lawsuit against the town, arguing that Emerald Isle put a “driving lane” across their property, and did so without compensation. They further point out that use of the driving lane by heavy vehicles has damaged their property.

In its defense, the town cites North Carolina’s “public trust constitution We The Peopledoctrine,” which, it says, allows the ordinance to cover the entire beach strand and to create an unobstructed pathway for emergency vehicles to reach the beach.

After losing in a trial court and the N.C. Court of Appeals, the Nieses, represented by the Pacific Legal Foundation (PLF) and the North Carolina firm of Morningstar Legal Group, are taking the case before the state’s Supreme Court. PLF’s J. David Breemer is confident that N.C. Supreme Court will reject the town’s argument.

“The Town claims its laws have taken nothing from the Nieses because it believes the title to the dry-sand areas has always been burdened by the public access rights that the Town may enforce,” Breemer writes on PLF’s website. “Unfortunately for the Town, state law says nothing of the sort. The public does have beach rights – but only on state-owned wet beaches seaward of the mean high-tide line. Upland areas like the Nieses’ property are fully private. As a result, the Town must condemn that property if it wants access.”

Constitutional Duty to Pay Compensation

“The case will decide whether government can escape the constitutional duty to pay compensation for opening up beachfront land to unwanted public and government access by relying on a novel ‘public trust doctrine’ easement that is not in the Nieses’ title and which has never been applied to private areas,” the PLF’s Brenner was quoted in thetimesnews.com (April 19) as saying.

Emerald Isle’s land-grabbing shows that local governments can be every bit as rapacious as the feds. And like the feds, they consider the U.S. Constitution a quant anachronism to be disregarded at will.

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.