Tr. Roc F. Sansotta v. Town of Nags Head, No. 12-1538

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtSHEDD
PartiesTRUSTEE ROC F. SANSOTTA, Trustee and Executor for Estate of Father Joseph Klaus; ROC F. SANSOTTA, Individually; RALPH S. TOMITA; GLORIA H. TOMITA; CAROLE A. SHACKELFORD; JAMES BREGMAN; LINDA ATSUS; GEORGE D. RUSIN, Plaintiffs - Appellants, v. TOWN OF NAGS HEAD, Defendant - Appellee, and TIMOTHY WILSON, Individually, Defendant.
Docket NumberNo. 12-1538
Decision Date25 July 2013

TRUSTEE ROC F. SANSOTTA, Trustee and Executor for Estate of Father Joseph Klaus;
TOWN OF NAGS HEAD, Defendant - Appellee,
and TIMOTHY WILSON, Individually, Defendant.

No. 12-1538


Argued: May 17, 2013
Decided: July 25, 2013


Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever III, Chief District Judge. (2:10-cv-00029-D)

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Shedd wrote the opinion, in which Judge Davis and Judge Diaz joined.

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ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellants. Benjamin Marshall Gallop, HORNTHAL, RILEY, ELLIS & MALAND, LLP, Nags Head, North Carolina; John D. Leidy, HORNTHAL, RILEY, ELLIS & MALAND, LLP, Elizabeth City, North Carolina, for Appellee. ON BRIEF: William J. Brian, Jr., Keith P. Anthony, Research Triangle Park, North Carolina, for Appellants.

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SHEDD, Circuit Judge:

The owners of six beachfront cottages sued the Town of Nags Head, North Carolina, in state court after the Town declared their cottages to be in violation of its nuisance ordinance. After the Town removed the case to federal court, the district court granted summary judgment to the Town on the owners' procedural due process and equal protection claims and dismissed the owners' takings claim as unripe. The cottage owners now appeal the district court's decision. For the following reasons, we affirm the district court's grant of summary judgment, reverse the district court's decision to dismiss the takings claim, and remand the case for further proceedings.1



Nags Head ("the Town") is located along the North Carolina Outer Banks on the Atlantic Ocean. Roc Sansotta, Ralph and Gloria Tomita, Carole Shackelford, James Bergman, Linda Atsus, George Rusin, and the estate of Joseph Klaus own six cottages on Seagull Drive in the Town. Roc Sansotta manages these cottages.2

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Like many parts of North Carolina's Outer Banks, the Town's beaches have eroded in recent decades, some of them at a rate of approximately two feet per year for over two decades. The beaches near Seagull Drive have eroded much faster, at a rate of approximately eight feet per year during these decades. As the beaches have eroded, cottages that were once landward of the first line of stable, natural vegetation are now seaward of this line and on the beach itself, between the vegetation line and the Atlantic Ocean. Since 2001, the six cottages involved in this case have been seaward of the vegetation line. Being located directly on the beach creates greater potential for damage to the cottages during severe storms, so Sansotta has taken measures to protect the cottages, including extending the pilings supporting the cottages 25 feet into the ground and putting extra sand around the cottages before storms.

On November 12, 2009, a major storm hit the Town, damaging multiple beachfront cottages. During the storm, the ocean breached Seagull Drive and washed out part of the road. Town officials then set up a barricade and ordered Sansotta and the contractors that he had hired to help protect the cottages to stop working on the cottages and leave the beach. Sansotta and his contractors ultimately complied with this order. Despite Sansotta's efforts to protect the six cottages that he managed,

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the storm washed away much of the sand from around the cottages, resulting in their septic tanks being exposed and other damage.

The Town's Nuisance Ordinance provides three bases for declaring a building to be a nuisance as a result of storm or erosion damage. It states:

The 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 public trust area or public land.3

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Nags Head, N.C., Code § 16-31(6) (emphasis added).

On November 30, 2009, Town Manager Cliff Ogburn notified the Owners by letter that the Town was declaring the cottages to be nuisances under subsections (b) and (c) of § 16-31(6). The letter informed the Owners that if the nuisance was not abated within 18 days, the Town would impose civil fines of $100 per day per cottage. Based on the Town's reliance on subsection (c), the only way that the Owners could abate the nuisance was to remove the cottages. Because demolishing the cottages was the only way to abate the nuisance, the nuisance declaration informed the Owners that no development permits would be issued for the cottages.4 The cottages remained standing in late January 2010, at which time the Town began imposing the fines.

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In addition to these six cottages, the Town had also declared 20 other cottages nuisances, four before the November 12 storm and 16 after. Although the owners of some cottages demolished their cottages based on the declaration, other owners have fought the declaration, resulting in litigation in both state and federal court. See, e.g., Toloczko, -- F.3d –-; Town of Nags Head v. Cherry, Inc., 723 S.E.2d 156 (N.C. Ct. App. 2012).


In May 2010, approximately four months after the Town began imposing these fines, the Owners filed suit against the Town in state court. The Town timely removed the case to the federal district court in the Eastern District of North Carolina. After various motions in the district court, the Owners' second amended complaint asserted 14 claims against the Town, stating claims under both federal and state law.5 The Town asserted four

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counterclaims, three of which sought an order of abatement, each on a different legal basis, and one of which sought recovery of the civil penalties that the Town had imposed.

While this litigation was ongoing, in early 2011 the Town obtained permission from the U.S. Army Corps of Engineers to undertake a massive $36 million beach renourishment project. By August 2011, the part of the renourishment project near the six cottages was completed, resulting in 200 feet of new beach in front of the cottages. Based on the new beach, the Town withdrew the nuisance declaration based on § 16-31(6)(c) in September 2011; the Town claimed that the cottages were still in the public trust but that they "no longer impermissibly or unacceptably restrict or obstruct the use of and access to the

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ocean beach." J.A. 784. The Town also invited the Owners to apply for permits to repair the cottages. The nuisance declaration based on § 16-31(6)(b), however, remained in effect.


Both parties moved for partial summary judgment. The district court granted summary judgment to the Town on the Owners' procedural due process claim because the Town never deprived the Owners of a property right, or alternatively, because the Owners had a postdeprivation remedy through an inverse condemnation proceeding. The court granted summary judgment to the Town on the equal protection claim because the Town's decision to declare only some cottages on the beach to be nuisances was rationally related to ensuring easy access for emergency vehicles along the beach.6 In addition to granting summary judgment on these claims, the district court dismissed the takings claim as unripe. Having disposed of the Owners' federal claims, the district court remanded the Owners' state-law claims, as well as the Town's four counterclaims, to state court. See Sansotta v. Town of Nags Head ("Sansotta I"), 863 F. Supp. 2d 495 (E.D.N.C. 2012). The Owners timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

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We first address the Owners' claims under the Due Process Clause and Equal Protection Clause.


We review a grant of summary judgment de novo and apply the same legal standards as the district court. Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Under Federal Rule of Civil Procedure 56, summary judgment should be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," based on the "materials in the record." Fed. R. Civ. P. 56. In conducting our review, we must view all evidence in the light most favorable to the nonmoving party. Hardwick ex rel. Hardwick, 711 F.3d at 433. At this stage, "we do not 'weigh the evidence,' but rather we only determine 'whether there is a genuine issue for trial.'" Id. (quoting Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


The Owners contend that the Town violated their procedural due process right by taking their money and property rights in the cottages without providing any predeprivation...

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