Nies v. Town of Emerald Isle
| Decision Date | 17 November 2015 |
| Docket Number | No. COA15–169.,COA15–169. |
| Citation | 244 N.C.App. 81,780 S.E.2d 187 |
| Parties | Gregory P. NIES and Diane S. Nies, Plaintiffs, v. TOWN OF EMERALD ISLE, a North Carolina Municipality, Defendant. |
| Court | North Carolina Court of Appeals |
Pacific Legal Foundation, by J. David Breemer ; and Morningstar Law Group, by Keith P. Anthony, Durham, for Plaintiffs–Appellants.
Crossley, McIntosh, Collier, Hanley & Edes, PLLC, Wilmington, by Brian E. Edes and Jarrett W. McGowan, for Defendant–Appellee.
Gregory P. Nies and Diane S. Nies ("Plaintiffs") purchased an oceanfront property ("the Property") in Defendant Town of Emerald Isle ("the Town") in June of 2001. Plaintiffs had been vacationing in the Town from their home in New Jersey since 1980. Plaintiffs filed this matter alleging the inverse condemnation taking of the Property by the Town.
"Generally speaking, state law defines property interests[.]" Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U.S. 702, 707–08, 130 S.Ct. 2592, 2597, 177 L.Ed.2d 184, 192 (2010) (citations omitted). North Carolina's ocean beaches are made up of different sections, the delineation of which are important to our decision. Fabrikant v. Currituck Cty., 174 N.C.App. 30, 33, 621 S.E.2d 19, 22 (2005). The "foreshore," or "wet sand beach," is the portion of the beach covered and uncovered, diurnally, by the regular movement of the tides. Id. The landward boundary of the foreshore is the mean high water mark. "Mean high water mark" is not defined by statute in North Carolina, but our Supreme Court has cited to a decision of the United States Supreme Court in discussing the meaning of the "mean" or "average high-tide." Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 303, 177 S.E.2d 513, 516 (1970). The United States Supreme Court decision cited by Fishing Pier defined "mean high tide" as the average of all high tides over a period of 18.6 years. Borax Consol. v. City of Los Angeles, 296 U.S. 10, 26–27, 56 S.Ct. 23, 31, 80 L.Ed. 9, 20 (1935).1
The "dry sand beach" is the portion of the beach landward of the mean high water mark and continuing to the high water mark of the storm tide. Fabrikant, 174 N.C.App. at 33, 621 S.E.2d at 22. The landward boundary of the dry sand beach will generally be the foot of the most seaward dunes, if dunes are present; the regular natural vegetation line, if natural vegetation is present; or the storm debris line, which indicates the highest regular point on the beach where debris from the ocean is deposited at storm tide. Travelling further away from the ocean past the dry sand beach one generally encounters dunes, vegetation, or some other landscape that is not regularly submerged beneath the salt waters of the ocean.
The seaward boundary of private beach ownership in North Carolina is set by statute:
N.C. Gen.Stat. § 77–20 (2013).
None of these natural lines of demarcation are static, as the beaches are continually changing due to erosion or accretion of sand, whether through the forces of nature or through human intervention. Furthermore, the State may acquire ownership of public trust dry sand ocean beach if public funds are used to raise that land above the mean high water mark:
Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State. Title to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor. All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State.
N.C. Gen.Stat. § 146–6(f) (2013) (emphasis added).
The Town, from time to time, has engaged in beach "nourishment" projects. The purpose of these projects has been to control or remediate erosion of the Town's beaches. The Town embarked on one such project in 2003 ("the Project"). According to Plaintiffs, the result of the Project was an extension of the dry sand beach from Plaintiffs' property line—the pre-Project mean high water mark—to a new mean high water mark located seaward of their property line. Therefore, the State now owns dry sand beach—which it holds for the public trust—between Plaintiffs' property line and the current mean high water mark—which no longer represents Plaintiffs' property line.
The Town was incorporated in 1957. The public has enjoyed access to its beaches, including both the publicly-owned foreshore—or wet sand beach—and the private property dry sand beaches, since at least that date. This access has included fishing (both commercial and recreational), sunbathing, recreation, horseback riding, and the driving of automobiles upon the beach strand. According to the unchallenged affidavit of Frank Rush ("Rush") who, at the time of the summary judgment hearing, had been the Town's Town Manager since July 2001, "[b]each driving has been allowed within the Town since its incorporation in 1957." Rush averred that, since at least 1980, the Town had been restricting beach driving within its borders to a "permitted driving area," which was defined in the Emerald Isle Code of Ordinances (Oct. 2010) ("the Ordinances" generally, or "the 2010 Ordinances" specifically). According to the minutes of the 9 December 1980 Regular Monthly Meeting of the Emerald Isle Town Board of Commissioners, which meeting was open to the public, beach driving in the Town was regulated by the Carteret County Beach Vehicular Ordinance at that time. In this 9 December 1980 meeting of the Board of Commissioners, the Board voted to rescind use of the Carteret County Beach Vehicular Ordinance and "re-adopt [the Town's] original Beach Vehicular Ordinance[.]" The record does not contain the Carteret County Beach Vehicular Ordinance, or any pre–1980 ordinances related to beach driving.
According to Plaintiffs: "Historically, the [Ordinances] permitted public driving on"
the foreshore and area within the [T]own consisting primarily of hardpacked sand and lying between the waters of the Atlantic Ocean ... and a point ten (10) feet seaward from the foot or toe of the dune closest to the waters of the Atlantic Ocean[.]
This is the language from Section 5–21 of the 2010 Ordinances, and accurately reflects the defined permitted driving area from the time Plaintiffs purchased the Property in June of 2001 until the filing of this action on 9 December 2011. This statement also constitutes an acknowledgement by Plaintiffs that, "historically," the public has been driving on private property dry sand beach, and that this behavior has been regulated by the Town. However, the ordinances "allowing" driving on the designated driving areas were in fact restrictive, not permissive, in that they restricted previously allowed behavior and did not create any new rights:
Emerald Isle Code of Ordinances §§ 5–22, 5–23 (Aug. 2004). The 1980 ordinances contained similar restrictive language related to beach driving. The Ordinances appear to have been adopted to regulate pre-existing behavior, not to permit new behavior.
In 2010, the Town adopted some new sections to the Ordinances, including Section 5–102, which stated:
(a) No beach equipment, attended or unattended, shall be placed within an area twenty (20) feet seaward of the base of the frontal dunes at any time, so as to maintain an unimpeded vehicle travel lane for emergency services personnel and other town personnel providing essential services on the beach strand.
Emerald Isle Code of Ordinances § 5–102 (Jan. 2010). "Beach strand" was defined by the 2010 Ordinances as "all land between the low water mark of the Atlantic Ocean and the base of the frontal dunes." Emerald Isle Code of Ordinances § 5–100 (Jan. 2010). Section 5–104 stated that any beach equipment found in violation of the Ordinances would be removed and disposed of by the Town, and could result in fines. Emerald Isle Code of Ordinances § 5–104 (Jan. 2010). According to Plaintiffs, Town and other permitted vehicles regularly drive over, and sometimes park on, the dry sand beach portion of the Property.
In 2013, subsequent to the filing of this action, the Town amended the Ordinances, completely reorganizing the contents of Chapter 5. For example, prohibitions previously found in Section 5–102 of the 2010 Ordinances are now found in Section 5–19 of the 2013 Ordina...
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