Sansotta v. Town of Nags Head, No. 2:10–CV–29–D.

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Writing for the Court: JAMES C. DEVER III, Chief Judge.
• Citation: 97 F.Supp.3d 713
• Parties: Roc F. SANSOTTA, Trustee and Executor for the Estate of Father Joseph Klaus, et al., Plaintiffs, v. TOWN OF NAGS HEAD, Defendant.
• Decision Date: 06 November 2014
• Docket Number: No. 2:10–CV–29–D.

97 F.Supp.3d 713

Roc F. SANSOTTA, Trustee and Executor for the Estate of Father Joseph Klaus, et al., Plaintiffs
v.
TOWN OF NAGS HEAD, Defendant.

No. 2:10–CV–29–D.

United States District Court, E.D. North Carolina, Northern Division.

Signed Nov. 6, 2014.

97 F.Supp.3d 717

Keith P. Anthony, Shannon R. Joseph, William J. Brian, Jr., Morningstar Law Group, Morrisville, NC, J. David Breemer, Jennifer F. Thompson, Pacific Legal Foundation, Sacramento, CA, for Plaintiffs.

Benjamin Marshall Gallop, Hornthal, Riley, Ellis & Maland, L.L.P., Nags Head, NC, John D. Leidy, M.H. Hood Ellis, L.P. Hornthal, Jr., Hornthal, Riley, Ellis & Maland, LLP, Elizabeth City, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief Judge.

Fundamentally, this case concerns whether the Town of Nags Head (“the Town”) committed a taking in violation of the Fifth Amendment to the United States Constitution and the Law of the Land Clause of the North Carolina Constitution by declaring plaintiffs' (“the Owners”) six beachfront cottages (“the Cottages”) to be public nuisances and ordering the Cottages'

97 F.Supp.3d 718

removal without offering plaintiffs the opportunity to repair them. The controversy arose after a major storm struck the Town on November 12, 2009. During the storm, the Town determined that the road in front of the Cottages had become impassable and closed the road. The road closure prevented the Owner's contractors from accessing the Cottages to shore them up for the storm. The storm eroded the beach in front of the Cottages and damaged the Cottages themselves. On November 30, 2009, the Town condemned each of the Cottages, declared each to be a public nuisance, and ordered the Owners to remove or destroy them. The Town's decision to declare the Cottages to be nuisances was based, in part, on the Town's view that the Cottages were located in a public trust area—that is, an area for which, under North Carolina law, the State holds certain property rights in trust for the public. The Owners disagreed that their Cottages were located in a public trust area, refused to remove or destroy the Cottages, and asked for permission to repair them to a habitable state. In years past, when a storm damaged the Owners' Cottages, the Town had permitted such repairs. After the 2009 storm, however, the Town refused to do so.

In response, on May 20, 2010, the Owners sued the Town and the Town Manager, Timothy Wilson, in Dare County Superior Court, alleging numerous claims, including several federal claims. See [D.E. 2–1]. On June 15, 2010, the Town and Wilson removed the action to this court based on federal-question jurisdiction [D.E. 1]. On September 30, 2010, the parties stipulated to Wilson's dismissal, leaving the Town as the sole defendant [D.E. 34]. On December 8, 2010, the Owners filed their second amended complaint [D.E. 45], asserting fourteen claims against the Town:

(1) Declaratory judgment that the Cottages are not in the “public trust” area. 2d Am. Compl. ¶¶ 104–10.

(2) Declaratory judgment that the enactment of Ordinance 16–31(6)(c) is beyond the Town's authority. Id. ¶¶ 111–18.

(3) Declaratory judgment that the Town's actions violated N.C. Gen.Stat. §§ 160A–441 to –450. Id. ¶¶ 119–26.

(4) Declaratory judgment that the Town lacks the authority to declare structures on the “dry sand beach” a nuisance. Id. ¶¶ 127–40.

(5) Declaratory judgment that Ordinance 16–31(6)(c) does not cover the “dry sand beach.” Id. ¶¶ 141–49.

(6) Declaratory judgment that the Town's action in restricting access to the Cottages during the November storm was unlawful. Id. ¶¶ 150–64.

(7) Declaratory judgment that the Town's actions deprived the Owners of their substantive due process rights under the United States and North Carolina Constitutions. Id. ¶¶ 165–67.

(8) Declaratory judgment that the Town's actions deprived the Owners of their procedural due process rights under the United States and North Carolina Constitutions. Id. ¶¶ 168–70.

(9) Declaratory judgment that the Town's actions deprived the Owners of equal protection of the law under the United States and North Carolina Constitutions. Id. ¶¶ 171–82.

(10) The Town acted under color of state law to deprive the Owners of their rights under the Fifth and Fourteenth Amendments of the United States Constitution, in violation

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of 42 U.S.C. § 1983. Id. ¶¶ 183–87.

(11) The Town's actions were a regulatory taking under the United States and North Carolina Constitutions. Id. ¶¶ 188–95.

(12) The Town's actions constituted inverse condemnation of the Cottages. Id. ¶¶ 196–210.

(13) The Town was negligent in preventing Sansotta's team from accessing the Cottages during the November storm and in failing to properly inspect the Cottages before issuing the Nuisance Declaration. Id. ¶¶ 211–26.

(14) Preliminary and permanent injunction of the Town's demolition of the Cottages, assessment of civil penalties against the Owners, and any Town action that prevents the Owners from protecting the Cottages. Id. ¶¶ 227–34.

On January 14, 2011, the Town answered the second amended complaint and asserted four counterclaims against the Owners [D.E. 50]:

(1) An order of abatement pursuant to N.C. Gen.Stat. § 160A–175. Town's Countercl. [D.E. 50] ¶¶ 1–50.

(2) In the alternative, an order of abatement pursuant to section 160A–193. Id. ¶¶ 51–62.

(3) In the alternative, an order of abatement pursuant to the common law theory of public nuisance. Id. ¶¶ 63–68.

(4) Recovery of civil penalties pursuant to section 160A–175. Id. ¶¶ 69–74.

On March 28, 2012, this court granted summary judgment to the Town on the Owners' seventh, eighth, ninth, and tenth claims, dismissed as unripe the Owners' eleventh claim (the regulatory taking claim), and remanded the remaining claims and counterclaims to Dare County Superior Court. Sansotta v. Town of Nags Head, 863 F.Supp.2d 495, 516 (E.D.N.C.2012). On appeal, the United States Court of Appeals for the Fourth Circuit affirmed this court's partial grant of summary judgment to the Town, but reversed this court's dismissal of the Owners' regulatory-taking claim and remanded the case for proceedings on the remaining claims. Sansotta v. Town of Nags Head, 724 F.3d 533, 549–50 (4th Cir.2013).

On November 6, 2013, this court held a status conference and established a briefing schedule [D.E. 169]. On January 21, 2014, the parties submitted supplemental memoranda concerning the remaining claims and counterclaims [D.E. 172, 175]. On January 31, 2014, the Owners responded [D.E. 176], and on February 1, 2014, the Town responded [D.E. 177]. The court also accepted a reply from the Owners. See [D.E. 180–1, 189]. On June 11, 2014, the court heard oral argument. See [D.E. 186]; Oral Arg. Tr. [D.E. 187]. As explained below, the court grants summary judgment to the Owners on their first, second, and fourth claims and on the Town's fourth counterclaim and denies the Town's motion for summary judgment on these claims and this counterclaim. On the Owners' sixth, seventh, eighth, and thirteenth claims, and on the block-access takings claim and the physical-occupation takings claim in the Owners' tenth, eleventh, and twelfth claims, the court grants the Town's motion for summary judgment. On the temporary-regulatory takings claim in the Owners' tenth, eleventh, and twelfth claims, and on the Town's first, second, and third counterclaims, the court denies summary judgment to both parties. The court dismisses the Owners' third and fifth claims as moot.

I.

Nags Head sits beside the Atlantic Ocean on North Carolina's Outer Banks.

97 F.Supp.3d 720

Those who own oceanfront property in Nags Head reap substantial benefits from the property's location, but they also face heightened risk of property damage due to storms and beach erosion. In May 1988, the Town amended its code to establish when such erosion or storm damage could render a structure a public nuisance. See Nags Head, N.C., Ordinance 88–05–16 (May 2, 1988) [D.E. 115–5]. Under the ordinance,

[t]he existence of any of the following conditions associated with storm-damaged or erosion-damaged structures or their resultant debris shall constitute a public nuisance.

(a) Damaged structure in danger of collapsing;

(b) Damaged structure or debris from damaged structures where it can reasonably be determined that there is a likelihood of personal or property injury;

(c) Any structure, regardless of condition, or any debris from damaged structure which is located in whole or in part in a

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