PLF Defends Emerald Isle Beach Homeowners Against A “Taking” By Town Officials

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PLFTown 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.”

The case is Nies v. Town of Emer­ald Isle.  More infor­ma­tion, includ­ing the open­ing brief on appeal, and a blog post by PLF Prin­ci­pal Attor­ney J. David Breemer, is avail­able at PLF’s web­site:

J. David Breemer
Prin­ci­pal Attorney
Pacif­ic Legal Foundation
(916) 419‑7111