North Carolina Court of Appeals Rules Emerald Isle’s Restriction on Use of Privately Owned Oceanfront Property is Not Compensable “Taking” Under Constitution
What part of a beach in North Carolina is subject to public use and what part is private property was recently addressed by the North Carolina Court of Appeals in Nies v. Town of Emerald Isle (Nov. 17, 2015). This case concerned ordinances adopted by a local government, the Town of Emerald Isle, and answered the question whether those ordinances, which limited how private property could be used, constituted a “taking” under the United States Constitution, thereby entitling the landowners to compensation from the Town.
The Nies owned oceanfront property in Emerald Isle in Carteret County. Emerald Isle enacted local ordinances restricting the driving of motor vehicles on the beach and limiting the placement of beach equipment, such as tents, chairs, etc. on the beach. The plaintiffs contended this was a “taking” of private property under the Fifth Amendment of the United States Constitution entitling them to just compensation. However, the trial court and the North Carolina Court of Appeals held otherwise.
Wet Sand Beach vs. Dry Sand Beach
This opinion initially restated the often confusing law regarding ownership of oceanfront property. “Ocean beaches” in North Carolina include both the “wet sand beach”, which is generally publically owned and the “dry sand beach”, that is generally privately owned. It noted the wet sand beach was the portion of the beach covered and uncovered by the regular movement of tides over a 24-hour period. The landward boundary of the wet sand beach is the “mean high water mark.” Next, the court defined the dry sand beach as that portion of the beach landward of the mean high water mark and continuing to the high water mark of the storm tide. The landward boundary of the dry sand beach is generally the foot of the most seaward dune, the regular natural vegetation line or the storm debris line. Finally, it noted that the seaward boundary of private beach ownership is stated in N.C. Gen. Stat. § 77-20(a), which reads “The seaward boundary of all property within the State of North Carolina, not owned by the State, which adjoins the ocean, is the mean high water mark.” Got all of that? Essentially, we have:
the wet sand beach is generally owned by the state;
the dry sand beach is generally owned by private parties
Access to the Dry Sand Beach; Beach Nourishment Projects
While the above statute indicates the dry sand beach can be privately owned property, who has access to it and whether regulations restricting its use constitute a “taking” are additional questions to consider. And, to complicate things further, when beach nourishment projects are undertaken and funded with public money, title to the land raised above the mean high water mark vests in the State and remain open to the free use and enjoyment of the public, consistent with the public trust rights in ocean beaches “which rights are part of the common heritage of the people of this State.” Emerald Isle incorporated in 1957 and since that time, has engaged in beach nourishment projects, including one in 2003 that extended the dry sand beach towards the ocean from the plaintiffs’ previous seaward property line. Therefore, the State owned the newly created dry sand beach, which it holds for the public trust.
Ordinances limiting access to privately owned Dry Sand Beach through use of town’s police power
Like many coastal towns, Emerald Isle adopted local ordinances restricting driving on the beach and also prohibiting the placement of beach equipment within 20 feet seaward of the base of the frontal dunes, so vehicles travelling for emergency services wouldn’t be impeded or have any obstacles in their path. Plaintiffs argued the dry sand beaches in North Carolina are privately owned and were not subject to the public trust doctrine. The appellate court flatly disagreed with this. It referred to Gwathmey v. State of North Carolina, (1995) as recognizing the public trust doctrine was a creation of common law. The Gwathmey case also recognized public trust rights may attach to public trust resources, which include both public and private lands. See N.C. Gen. Stat. § 113-131(e); § 1-45.1.
The court documented the longstanding customary right of access of the public to North Carolina’s dry sand beaches and also recognized the statutory recognition of this right. The court concluded the “ocean beaches” of North Carolina include both the wet sand beaches, which are publicly owned, and the dry sand beaches, which are privately owned. It noted the landward boundary of North Carolina’s ocean beaches is the discernible reach of the “storm” tide, which is generally also found to be the frontal toe of the dune and the first line of natural vegetation. Since the “ocean beaches” were either publicly owned (wet sand beach) or subject to public trust rights (dry sand beach), the limitation of the public’s right to use the public trust dry sand beaches was achieved through the use of the State’s police power. Courts have long held when police power is utilized, even if it deprives the landowner of all of the economic benefit of that land, it is not a compensable taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
The court got into Real Property 101 by discussing the “bundle of rights” landowners have. Since there is a portion of privately owned oceanfront land that is subject to public trust rights (i.e. the dry sand beach), the plaintiffs could not exclude the public from this area. That also means local governments can restrict how such land can be used without having to compensate the owners. In essence, the public trust doctrine imposes an easement on the privately owned dry sand beach and local governments can regulate how that easement is utilized. Therefore, local ordinances regulating beach driving or prohibiting placement of beach equipment do not rise to the level of a Fifth Amendment taking.
The opinion in Nies v. Emerald Isle was authored by Chief Judge Linda McGee and Judges Elmore and Davis concurred. No one would be surprised if Plaintiffs seek a discretionary review of this ruling and we will keep our eyes on that going forward. But for now, our courts have clearly preserved the right of the public to have access to the dry sand beaches in North Carolina through the application of the public trust doctrine. So, enjoy your public trust rights and feel free to swim in the Atlantic Ocean and then sit back in your beach chair and soak up all of the rays you can!