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Full Opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-169
Filed: 17 November 2015
Carteret County, No. 11 CVS 1569
GREGORY P. NIES and DIANE S. NIES, Plaintiffs,
v.
TOWN OF EMERALD ISLE, a North Carolina Municipality, Defendant.
Appeal by Plaintiffs from order entered 26 August 2014 by Judge Jack W.
Jenkins in Superior Court, Carteret County. Heard in the Court of Appeals 24
August 2015.
Pacific Legal Foundation, by J. David Breemer; and Morningstar Law Group,
by Keith P. Anthony, for Plaintiffs-Appellants.
Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Brian E. Edes and
Jarrett W. McGowan, for Defendant-Appellee.
McGEE, Chief Judge.
Gregory P. Nies and Diane S. Nies (âPlaintiffsâ) purchased an oceanfront
property (âthe Propertyâ) in Defendant Town of Emerald Isle (âthe Townâ) 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.
I.
NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
âGenerally speaking, state law defines property interests[.]â Stop the Beach
Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U.S. 702, 707-
08, 177 L. Ed. 2d 184, 192 (2010) (citations omitted). North Carolinaâs 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 âforeshore,â or âwet sand beach,â 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. âMean high water markâ 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 âmeanâ
or âaverage high-tide.â 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 âmean high tideâ 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, 80 L. Ed. 9, 20
(1935).1
The âdry sand beachâ 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
1This time period is used because there is ââa periodic variation in the rise of water above sea
level having a period of 18.6 years[.]ââ Id.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
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:
(a) 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. Provided, that
this section shall not apply where title below the mean high
water mark is or has been specifically granted by the State.
(b) Notwithstanding any other provision of law, no agency
shall issue any rule or regulation which adopts as the
seaward boundary of privately owned property any line
other than the mean high water mark. The mean high
water mark also shall be used as the seaward boundary for
determining the area of any property when such
determination is necessary to the application of any rule or
regulation issued by any agency.
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:
-3-
NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
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 ânourishmentâ projects.
The purpose of these projects has been to control or remediate erosion of the Townâs
beaches. The Town embarked on one such project in 2003 (âthe Projectâ). According
to Plaintiffs, the result of the Project was an extension of the dry sand beach from
Plaintiffsâ property line â the pre-Project mean high water mark â to a new mean high
water mark located seaward of their property line. Therefore, the State now owns
dry sand beach â which it holds for the public trust â between Plaintiffsâ property line
and the current mean high water mark â which no longer represents Plaintiffsâ
property line.
The Town was incorporated in 1957. The public has enjoyed access to its
beaches, including both the publicly-owned foreshore â or wet sand beach â 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,
-4-
NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
and the driving of automobiles upon the beach strand. According to the unchallenged
affidavit of Frank Rush (âRushâ) who, at the time of the summary judgment hearing,
had been the Townâs Town Manager since July 2001, â[b]each driving has been
allowed within the Town since its incorporation in 1957.â Rush averred that, since
at least 1980, the Town had been restricting beach driving within its borders to a
âpermitted driving area,â which was defined in the Emerald Isle Code of Ordinances
(Oct. 2010) (âthe Ordinancesâ generally, or âthe 2010 Ordinancesâ 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 âre-adopt [the Townâs] original Beach Vehicular
Ordinance[.]â The record does not contain the Carteret County Beach Vehicular
Ordinance, or any pre-1980 ordinances related to beach driving.
According to Plaintiffs: âHistorically, the [Ordinances] permitted public driving
onâ
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[.]
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
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, âhistorically,â the public has
been driving on private property dry sand beach, and that this behavior has been
regulated by the Town. However, the ordinances âallowingâ 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:
Sec. 5-22. Driving on beach and sand dunes prohibited:
exceptions.
It shall be unlawful for any vehicular traffic to travel upon
the beach and sand dunes located within the town between
9 pm on April 30 and 5 am on September 15. . . . . This
does not apply to commercial fisherm[e]n holding valid
state licenses while engaged in commercial fishing
activities.
Sec. 5-23. Driving on designated areas only.
It shall be unlawful for any vehicular traffic holding and
displaying a duly authorized permit issued pursuant to
this article to travel on any portion of the beach and sand
dune areas other than those areas designated herein as
permitted driving areas and the limited access ways as
defined in section 5-21.
Emerald Isle Code of Ordinances §§ 5-22, 5-23 (Aug. 2004). The 1980 ordinances
contained similar restrictive language related to beach driving. The Ordinances
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
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). âBeach strandâ was defined by
the 2010 Ordinances as âall land between the low water mark of the Atlantic Ocean
and the base of the frontal dunes.â 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 Ordinances. Section 5-1 of the 2013 Ordinances states:
âUnless otherwise noted, this chapter shall be applicable on the public trust beach
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
area, as defined by NCGS 77-20, and includes all land and water area between the
Atlantic Ocean and the base of the frontal dunes.â Emerald Isle Code of Ordinances
§ 5-1 (Oct. 2013). Sections 5-60 and 5-61 of the 2013 Ordinances limit driving on âthe
public trust beach areaâ to certain time periods, and restrict driving on these areas
to permitted vehicles. Emerald Isle Code of Ordinances §§ 5-60, 5-61 (Oct. 2013).
Permits are issued to qualified applicants by the Town Manager. Emerald Isle Code
of Ordinances § 5-61 (Oct. 2013). Though the language used in Section 5-19 of the
2013 Ordinances differs in some respects from the previous language found in Section
5-102 of the 2010 Ordinances, Section 5-19 still reserves an unimpeded twenty-foot-
wide strip along the beach measured seaward from the foot of the frontal dunes.
Plaintiffsâ action is not materially affected by the 2013 amendment to the Ordinances.
Relevant to this appeal, Plaintiffs claim that the effect of the contested Ordinances
was the taking of the dry sand beach portion of the Property by the Town.
Plaintiffs, along with other property owners not parties to this appeal, filed
this action on 9 December 2011. The complaint alleged, inter alia, violation of the
Takings Clause of the Fifth Amendment of the United States Constitution. The Town
moved for summary judgment on 25 July 2014. Summary judgment in favor of the
Town was granted by order entered 26 August 2014, and Plaintiffsâ action was
dismissed. Plaintiffs appeal.
II.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
Plaintiffsâ sole argument on appeal is that the trial court erred in granting
summary judgment in favor of the Town because the contested ordinances effected a
taking of the Property in violation of the Takings Clause of the Fifth Amendment. In
support of their argument, Plaintiffs contend that the dry sand ocean beach portion
of their property is not subject to public trust rights.
Summary judgment is appropriate when âthe pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that any party
is entitled to a judgment as a matter of law.â N.C.G.S. §
1Aâ1, Rule 56(c) (2013). We review de novo an order
granting summary judgment.
Falk v. Fannie Mae, 367 N.C. 594, 599, 766 S.E.2d 271, 275 (2014) (citation omitted).
We affirm the ruling of the trial court.
III.
Plaintiffs first argue that privately owned dry sand beaches in North Carolina
are not subject to the public trust doctrine. We disagree.
Our Supreme Court has noted that âthe law involving the public trust doctrine
has been recognized . . . as having become unnecessarily complex and at times
conflicting.â Gwathmey v. State of North Carolina, 342 N.C. 287, 311, 464 S.E.2d 674,
688 (1995). The public trust doctrine is a creation of common law. Fabrikant, 174
N.C. App. at 41, 621 S.E.2d at 27. Our General Assembly has codified recognition of
the continuing legal relevance of common law in the State:
-9-
NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
N.C.G.S. § 4â1 provides:
All such parts of the common law as were heretofore in
force and use within this State, or so much of the common
law as is not destructive of, or repugnant to, or inconsistent
with, the freedom and independence of this State and the
form of government therein established, and which has not
been otherwise provided for in whole or in part, not
abrogated, repealed, or become obsolete, are hereby
declared to be in full force within this State.
Gwathmey, 342 N.C. at 295-96, 464 S.E.2d at 679.
[T]he âcommon lawâ to be applied in North Carolina is the
common law of England to the extent it was in force and
use within this State at the time of the Declaration of
Independence; is not otherwise contrary to the
independence of this State or the form of government
established therefor; and is not abrogated, repealed, or
obsolete. N.C.G.S. § 4â1. Further, much of the common
law that is in force by virtue of N.C.G.S. § 4â1 may be
modified or repealed by the General Assembly, except that
any parts of the common law which are incorporated in our
Constitution may be modified only by proper constitutional
amendment.
Id. at 296, 464 S.E.2d at 679 (emphasis added); see also Shively v. Bowlby, 152 U.S.
1, 14, 38 L. Ed. 331, 337 (1894) (âThe common law of England upon this subject, at
the time of the emigration of our ancestors, is the law of this country, except so far as
it has been modified by the charters, constitutions, statutes, or usages of the several
colonies and states, or by the constitution and laws of the United States.â). The
General Assembly has the power to make or amend laws so long as those laws do not
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
offend the constitutions of our State or the United States. As our Supreme Court has
recognized:
â(U)nder our Constitution, the General Assembly, so far as
that instrument is concerned, is possessed of full legislative
powers unless restrained by express constitutional
provision or necessary implication therefrom.â Absent
such constitutional restraint, questions as to public policy
are for legislative determination. When the
constitutionality of a statute is challenged, âevery
presumption is to be indulged in favor of its validity.â
Martin v. Housing Corp., 277 N.C. 29, 41, 175 S.E.2d 665, 671 (1970) (citations
omitted).
This Court has recognized both public trust lands and public trust rights as
codified by our General Assembly:
The public trust doctrine is a common law principle
providing that certain land associated with bodies of water
is held in trust by the State for the benefit of the public.
As this Court has held, âpublic trust rights are âthose rights
held in trust by the State for the use and benefit of the
people of the State in common. . . . . They include, but are
not limited to, the right to navigate, swim, hunt, fish and
enjoy all recreational activities in the watercourses of the
State and the right to freely use and enjoy the Stateâs ocean
and estuarine beaches and public access to the beaches.ââ
Friends of Hatteras Island Natâl Historic Maritime Forest
Land Trust for Pres., Inc. v. Coastal Res. Commân, 117 N.C.
App. 556, 574, 452 S.E.2d 337, 348 (1995) (emphasis
omitted) (quoting N.C. Gen. Stat. § 1â45.1 (1994)).
Fabrikant, 174 N.C. App. at 41, 621 S.E.2d at 27 (citation omitted). Public trust
rights are associated with public trust lands, but are not inextricably tied to
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
ownership of these lands. For example, the General Assembly may convey ownership
of public trust land to a private party, but will be considered to have retained public
trust rights in that land unless specifically relinquished in the transferring
legislation by âthe clearest and most express terms.â Gwathmey, 342 N.C. at 304, 464
S.E.2d at 684. Public trust rights are also attached to public trust resources which,
according to our General Assembly, may include both public and private lands:
âpublic trust resourcesâ means land and water areas, both
public and private, subject to public trust rights as that
term is defined in G.S. 1-45.1.
N.C. Gen. Stat. § 113-131(e) (2013) (emphasis added). As noted above, N.C. Gen.
Stat. § 1-45.1 defined public trust rights as including the âright to freely use and enjoy
the Stateâs ocean and estuarine beaches and public access to the beaches.â Fabrikant,
174 N.C. App. at 41, 621 S.E.2d at 27 (citation and quotation marks omitted). This
Court has adopted the N.C. Gen. Stat. § 1-45.1 definition of public trust rights. Id.
Concerning âocean beaches,â the General Assembly has found:
The public has traditionally fully enjoyed the Stateâs
beaches and coastal waters and public access to and use of
the beaches and coastal waters. The beaches provide a
recreational resource of great importance to North
Carolina and its citizens and this makes a significant
contribution to the economic well-being of the State. The
General Assembly finds that the beaches and coastal
waters are resources of statewide significance and have
been customarily freely used and enjoyed by people
throughout the State.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
N.C. Gen. Stat. § 113A-134.1(b) (2013). The General Assembly considers access to,
and use of, ocean beaches to be a public trust right. N.C. Gen. Stat. § 1-45.1; N.C.
Gen. Stat. § 113A-134.2 (2013). This Court has indicated its agreement. Fabrikant,
174 N.C. App. at 41, 621 S.E.2d at 27.
N.C. Gen. Stat. § 77-20(e) defines âocean beachesâ as follows:
â[O]cean beachesâ means the area adjacent to the ocean
and ocean inlets that is subject to public trust rights. This
area is in constant flux due to the action of wind, waves,
tides, and storms and includes the wet sand area of the
beach that is subject to regular flooding by tides and the dry
sand area of the beach that is subject to occasional flooding
by tides, including wind tides other than those resulting
from a hurricane or tropical storm. The landward extent
of the ocean beaches is established by the common law as
interpreted and applied by the courts of this State. Natural
indicators of the landward extent of the ocean beaches
include, but are not limited to, the first line of stable,
natural vegetation; the toe of the frontal dune; and the
storm trash line.
N.C. Gen. Stat. § 77-20(e) (emphasis added). Having attempted to define âocean
beaches,â N.C. Gen. Stat. § 77-20(d) further states the position of the General
Assembly that the public trust portions of North Carolina ocean beaches include the
dry sand portions of those beaches:
The public having made frequent, uninterrupted, and
unobstructed use of the full width and breadth of the ocean
beaches of this State from time immemorial, this section
shall not be construed to impair the right of the people to
the customary free use and enjoyment of the ocean beaches,
which rights remain reserved to the people of this State
under the common law and are a part of the common
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
heritage of the State recognized by Article XIV, Section 5 of
the Constitution of North Carolina. These public trust
rights in the ocean beaches are established in the common
law as interpreted and applied by the courts of this State.
N.C. Gen. Stat. § 77-20(d). N.C. Gen. Stat. § 77-20 was last amended in 1998, before
Plaintiffs purchased the Property.
The Executive Branch, through a 1996 opinion of the Attorney General, also
adopted this assessment.
Because the public ownership stops at the high water line,
the public must either be in the water or on the dry sand
beach when the tide is high. The term âdry sand beachâ
refers to the flat area of sand seaward of the dunes or
bulkhead which is flooded on an irregular basis by storm
tides or unusually high tides. It is an area of private
property which the State maintains is impressed with
public rights of use under the public trust doctrine and the
doctrine of custom or prescription.
Opinion of Attorney General Re: Advisory Opinion Ocean Beach Renourishment
Projects, N.C.G.S. § 146-6(f), 1996 WL 925134, *2 (Oct. 15, 1996) (âAdvisory Opinionâ)
(emphasis added) (citation omitted); See also 15A N.C.A.C. 7M.0301 (2015) (wherein
the Department of Environment and Natural Resources expresses a similar view).
The General Assembly has made clear its understanding that at least some
portion of privately-owned dry sand beaches are subject to public trust rights. The
General Assembly has the power to make this determination through legislation, and
thereby modify any prior common law understanding of the geographic limits of these
public trust rights. Gwathmey, 342 N.C. at 296, 464 S.E.2d at 679.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
There is, however, potential ambiguity in the definition of âocean beachesâ
provided in N.C. Gen. Stat. § 77-20(e):
The landward extent of the ocean beaches is established by
the common law as interpreted and applied by the courts
of this State. Natural indicators of the landward extent of
the ocean beaches include, but are not limited to, the first
line of stable, natural vegetation; the toe of the frontal
dune; and the storm trash line.
N.C. Gen. Stat. § 77-20(e). A thorough search of the opinions of this Court and our
Supreme Court fails to uncover any holding establishing the landward extent of
North Carolinaâs ocean beaches. Further, it is not clear that any North Carolina
appellate court has specifically recognized the dry sand portion of our ocean beaches
as subject to public trust rights. In Concerned Citizens, this Court, in dicta, discussed
the public trust doctrine relative to privately owned property in the following manner:
Finally, we note that in its joint brief plaintiffs and
plaintiff-intervenor rely heavily on the âpublic trust
doctrine.â They argue that holding our Stateâs beaches in
trust for the use and enjoyment of all our citizens would be
meaningless without securing public access to the beaches.
However, plaintiffs cite no North Carolina case where the
public trust doctrine is used to acquire additional rights for
the public generally at the expense of private property
owners. We are not persuaded that we should extend the
public trust doctrine to deprive individual property owners
of some portion of their property rights without
compensation.
Concerned Citizens v. Holden Beach Enterprises, 95 N.C. App. 38, 46, 381 S.E.2d 810,
815 (1989) (Concerned Citizens I), revâd, Concerned Citizens v. Holden Beach
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
Enterprises, 329 N.C. 37, 404 S.E.2d 677 (1991). However, our Supreme Court
reversed this Courtâs opinion in Concerned Citizens on different grounds and
expressly disavowed the above dicta:
We note dicta in the Court of Appeals opinion to the effect
that the public trust doctrine will not secure public access
to a public beach across the land of a private property
owner. Concerned Citizens v. Holden Beach Enterprises, 95
N.C. App. at 46, 381 S.E.2d at 815. As the statement was
not necessary to the Court of Appeals opinion, nor is it clear
that in its unqualified form the statement reflects the law
of this state, we expressly disavow this comment.
Concerned Citizens v. Holden Beach Enterprises, 329 N.C. 37, 55, 404 S.E.2d 677, 688
(1991) (Concerned Citizens II).
We acknowledge both the long-standing customary right of access of the public
to the dry sand beaches of North Carolina2 as well as current legislation mandating
such. See N.C. Gen. Stat. § 77-20. It is unclear from prior North Carolina appellate
opinions whether the common law doctrine of custom is recognized as an independent
doctrine in North Carolina, or whether long-standing âcustomâ has been used to help
determine where and how the public trust doctrine might apply in certain
circumstances. The General Assembly apparently considers âcustomâ as a factor in
2 Though the issue of historical right of public access to the dry sand beaches was not fully
argued below, and is not extensively argued on appeal, it is unchallenged that the Town had allowed
public access on privately-owned dry sand beaches since its incorporation. The statement of our
General Assembly that the âpublic ha[s] made frequent, uninterrupted, and unobstructed use of the
full width and breadth of the ocean beaches of this State from time immemorial,â N.C. Gen. Stat. § 77-
20(d), is also uncontested by Plaintiffs. See also N.C. Gen. Stat. § 113A-134.1(b); N.C. Gen. Stat. §
146-6(f).
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
determining the reach of public trust rights in North Carolina. See N.C. Gen. Stat. §
77-20(d). Our Attorney General, at least in 1996, was of the opinion that the doctrine
of custom operated to preserve public access to North Carolinaâs dry sand beaches.
Advisory Opinion, 1996 WL 925134, *2. In any event, we take notice that public right
of access to dry sand beaches in North Carolina is so firmly rooted in the custom and
history of North Carolina that it has become a part of the public consciousness.
Native-born North Carolinians do not generally question whether the public has the
right to move freely between the wet sand and dry sand portions of our ocean beaches.
Though some states, such as Plaintiffsâ home state of New Jersey, recognize different
rights of access to their ocean beaches, no such restrictions have traditionally been
practiced in North Carolina. See Kalo, The Changing Face of the Shoreline, 78 N.C.
L. Rev. at 1876-77 (â[O]ut-of-state buyers came from areas with different customs and
legal traditions. Many of these buyers came from states, like New Jersey, where dry
sand beaches were regarded as private or largely private. Consequently, many of
them brought their expectations of privacy with them to North Carolina. The customs
and traditions of North Carolina, however, are not necessarily those of New Jersey,
Virginia, or Massachusetts.â).
N.C. Gen. Stat. § 77-20 establishes that some portion, at least, of privately-
owned dry sand beaches are subject to public trust rights. Lacking further guidance
from prior opinions of our appellate courts, we must determine the geographic
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
boundary of public trust rights on privately-owned dry sand beaches. We adopt the
test suggested in N.C. Gen. Stat. § 77-20(e): âNatural indicators of the landward
extent of the ocean beaches include, but are not limited to, the first line of stable,
natural vegetation; the toe of the frontal dune; and the storm trash line.â Id. We
adopt this test because it most closely reflects what the majority of North Carolinians
understand as a âpublicâ beach. See, e.g., Joseph J. Kalo, The Changing Face of the
Shoreline: Public and Private Rights to the Natural and Nourished Dry Sand Beaches
of North Carolina, 78 N.C. L. Rev. 1869, 1877 (2000) (âthe custom of the dry sand
beaches being open to public trust uses has a long history in North Carolinaâ). We
hold that the âocean beachesâ of North Carolina include both the wet sand beaches â
generally, but not exclusively, publically owned â and the dry sand beaches â
generally, but not exclusively, privately owned.
For the purposes of N.C. Gen. Stat. § 77-20, the landward boundary of North
Carolina ocean beaches is the discernable reach of the âstormâ tide. This boundary
represents the extent of semi-regular submersion of land by ocean waters sufficient
to prevent the seaward expansion of frontal dunes, or stable, natural vegetation,
where such dunes or vegetation exist. Where both frontal dunes and natural
vegetation exist, the high water mark shall be the seaward of the two lines. Where
no frontal dunes nor stable, natural vegetation exists, the high water mark shall be
determined by some other reasonable method, which may involve determination of
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
the âstorm trash lineâ or any other reliable indicator of the mean regular extent of
the storm tide. The ocean beaches of North Carolina, as defined in N.C. Gen. Stat. §
77-20(e) and this opinion, are subject to public trust rights unless those rights have
been expressly abandoned by the State. See Gwathmey, 342 N.C. at 304, 464 S.E.2d
at 684.
The limits of the publicâs right to use the public trust dry sand beaches are
established through appropriate use of the Stateâs police power. As the United States
Supreme Court has stated:
Where the State seeks to sustain regulation that deprives
land of all economically beneficial use, we think it may
resist compensation only if the logically antecedent inquiry
into the nature of the ownerâs estate shows that the
proscribed use interests were not part of his title to begin
with. This accords, we think, with our âtakingsâ
jurisprudence, which has traditionally been guided by the
understandings of our citizens regarding the content of,
and the Stateâs power over, the âbundle of rightsâ that they
acquire when they obtain title to property. It seems to us
that the property owner necessarily expects the uses of his
property to be restricted, from time to time, by various
measures newly enacted by the State in legitimate exercise
of its police powers; â[a]s long recognized, some values are
enjoyed under an implied limitation and must yield to the
police power.â
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027, 120 L. Ed. 2d 798, 820
(1992) (citations omitted).
The right to prevent the public from enjoying the dry sand portion of the
Property was never part of the âbundle of rightsâ purchased by Plaintiffs in 2001.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
Because Plaintiffs have no right to exclude the public from public trust beaches, those
portions of the Ordinances regulating beach driving,3 even if construed as ordinances
âallowingâ beach driving, cannot effectuate a Fifth Amendment taking.
IV.
We must next determine whether the Town, pursuant to public trust rights or
otherwise, may enforce ordinances reserving unimpeded access over portions of
Plaintiffsâ dry sand beach without compensating Plaintiffs. We hold, on these facts,
that it may.
Public trust rights in Plaintiffsâ property are held by the State concurrently
with Plaintiffsâ rights as property owners. Though the Town may prevent Plaintiffs
from denying the public access to the dry sand beach portion of the Property for
certain activities, that does not automatically establish that the Town can prevent,
regulate, or restrict other specific uses of the Property by Plaintiffs without
implicating the Takings Clause of the Fifth Amendment to the United States
Constitution:
The Takings Clause â ânor shall private property be taken
for public use, without just compensation,â U.S. Const.,
Amdt. 5 â applies as fully to the taking of a landownerâs
[littoral] rights as it does to the taking of an estate in land.
Moreover, though the classic taking is a transfer of
property to the State or to another private party by
eminent domain, the Takings Clause applies to other state
actions that achieve the same thing. Thus, when the
3 Sections 5-21 through 5-32 of the 2010 Ordinances, and Sections 5-1 and 5-60 through 5-64
of the 2013 Ordinances.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
government uses its own property in such a way that it
destroys private property, it has taken that property.
Similarly, our doctrine of regulatory takings âaims to
identify regulatory actions that are functionally equivalent
to the classic taking.â
Stop the Beach, 560 U.S. at 713, 177 L. Ed. 2d at 195 (citations omitted).
As Plaintiffs acknowledge: âTakings tests vary depending on whether the
challenged imposition is a physical invasion of property or a regulatory restriction on
the use of property.â âIn Lucas [v. South Carolina Coastal Council, 505 U.S. 1003,
120 L. Ed. 2d 798 (1992)], the [United States Supreme] Court established two
categories of regulatory action that require a finding of a compensable taking:
regulations that compel physical invasions of property and regulations that deny an
owner all economically beneficial or productive use of property.â King v. State of
North Carolina, 125 N.C. App. 379, 385, 481 S.E.2d 330, 333 (1997) (citation omitted).
Plaintiffs argue on appeal that the contested ordinances violate the âphysical
invasionsâ prong of Lucas and King, and therefore effect a per se taking. Plaintiffs do
not argue that the contested ordinances constitute a regulatory taking.
A.
Plaintiffs cannot establish that the contested beach driving ordinances4
constitute physical invasion of the Property for purposes of the Takings Clause. The
majority of Plaintiffsâ argument is predicated on Plaintiffsâ contention that the dry
4 Sections 5-21 through 5-32 of the 2010 Ordinances, and Sections 5-1 and 5-60 through 5-64
of the 2013 Ordinances.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
sand portion of the Property is not encumbered by public trust rights. We have held
that the dry sand portion of the Property is so encumbered. Because public beach
driving across the Property is permissible pursuant to public trust rights, regulation
of this behavior by the Town does not constitute a âtaking.â
Plaintiffs have never, since they purchased the Property in 2001, had the right
to exclude public traffic, whether pedestrian or vehicular, from the public trust dry
sand beach portions of the Property. The Town has the authority to both ensure
public access to its ocean beaches, and to impose appropriate regulations pursuant to
its police power. See Fabrikant, 174 N.C. App. at 41, 621 S.E.2d at 27; see also Kirby
v. N.C. Dep't of Transp., __ N.C. App. __, __, 769 S.E.2d 218, 230 (2015), disc. rev.
allowed, __ N.C. __, 775 S.E.2d 829 (2015); Slavin v. Town of Oak Island, 160 N.C.
App. 57, 584 S.E.2d 100 (2003). The contested beach driving portions of the
Ordinances do not create a right of the public relative to the Property; they regulate
a right that the public already enjoyed. See also, e.g., N.C. Gen. Stat. § 160A-308
(2013) (âA municipality may by ordinance regulate, restrict and prohibit the use of
dune or beach buggies, jeeps, motorcycles, cars, trucks, or any other form of power-
driven vehicle specified by the governing body of the municipality on the foreshore,
beach strand and the barrier dune system. . . . . Provided, a municipality shall not
prohibit the use of such specified vehicles from the foreshore, beach strand and
barrier dune system by commercial fishermen for commercial activities.â).
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
B.
Plaintiffs also contest Section 5-102 of the 2010 Ordinances and Section 5-19
of the 2013 Ordinances. Section 5-102 prohibits any beach equipment âwithin an
area twenty . . . 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.â Emerald Isle
Code of Ordinances § 5-102 (Jan. 2010). Plaintiffs argue that the beach equipment
ordinance prevents them from âstation[ing] any beach gear in the strip of land near
the dunes during May-September (and many other times) due to the passing of Town
vehicles, and for the same reason (and due to the ruts left by the vehicles) they can
barely walk on the land.â
The 2013 Ordinances include the following provisions related to beach
equipment:
Sec. 5-19. Restricted placement of beach equipment.
a) In order to provide sufficient area for unimpeded vehicle
travel by emergency vehicles and town service vehicles on
the public trust beach area, no beach equipment, including
beach tents, canopies, umbrellas, awnings, chairs, sporting
nets, or other similar items shall be placed:
1. Within an area twenty (20) feet seaward of the base
of the frontal dunes on the public trust beach area;
2. Within the twenty (20) feet travel lane on the public
trust beach areas that extends from any vehicle access
ramp.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
b) The requirements of subsection a) shall apply only
between May 1 and September 14 of each year, and
emergency vehicles and town service vehicles shall only
utilize said areas when no safe alternative vehicle travel
area is available elsewhere on the public trust beach area.
c) In order to promote the protection of threatened and/or
endangered sea turtles, no beach equipment, including
beach tents, canopies, umbrellas, awnings, chairs, sporting
nets, or other similar items shall be placed within twenty
(20) feet of any sea turtle nest.
d) Violations of this section shall subject the offender to a
civil penalty of fifty dollars ($50.00).
Emerald Isle Code of Ordinances § 5-19 (Oct. 2013). We have already held that the
public, including the Town, has the right to drive on public trust beaches. This right
may be regulated, within the Townâs limits, through the Townâs police power.
Therefore, no part of Section 5-19 of the 2013 Ordinances5 âallowingâ or regulating
driving on the dry sand portion of the Property can constitute a taking.
As our Supreme Court has noted:
âThe question of what constitutes a taking is often
interwoven with the question of whether a particular act is
an exercise of the police power or the power of eminent
domain. If the act is a proper exercise of the police power,
the constitutional provision that private property shall not
be taken for public use, unless compensation is made, is not
applicable.â âThe state must compensate for property
rights taken by eminent domain; damages resulting from
the exercise of the police power are noncompensable.â
5 We will analyze Section 5-19 of the 2013 Ordinances, but our analysis applies to Section 5-
102 of the 2010 Ordinances as well.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
Barnes v. Highway Commission, 257 N.C. 507, 514, 126 S.E.2d 732, 737-38 (1962)
(citations omitted). Further:
âWhat distinguishes eminent domain from the police power
is that the former involves the taking of property because
of its need for the public use while the latter involves the
regulation of such property to prevent its use thereof in a
manner that is detrimental to the public interest.â âThe
police power may be loosely described as the power of the
sovereign to prevent persons under its jurisdiction from
conducting themselves or using their property to the
detriment of the general welfare.â âThe police power is
inherent in the sovereignty of the State. It is as extensive
as may be required for the protection of the public health,
safety, morals and general welfare.â âUpon it depends the
security of social order, the life and health of the citizen,
the comfort of an existence in a thickly-populated
community, the enjoyment of private and social life, and
the beneficial use of property.â
[T]he police power[ ] [is] the power vested in the
Legislature by the Constitution, to make, ordain,
and establish all manner of wholesome and
reasonable laws, statutes, and ordinances, either
with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good
and welfare of the Commonwealth, and of the
subjects of the same.
âLaws and regulations of a police nature . . . do not
appropriate private property for public use, but simply
regulate its use and enjoyment by the owner.â ââRegulationâ
implies a degree of control according to certain prescribed
rules, usually in the form of restrictions imposed on a
personâs otherwise free use of the property subject to the
regulation.â
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
Kirby, __ N.C. App. at __, 769 S.E.2d at 229-30 (citations omitted). The only âphysical
invasionâ of the Property arguably resulting from Section 5-19 is Town vehicular
traffic. However, we have held that Town vehicular traffic is allowed pursuant to the
public trust doctrine and, therefore, cannot constitute a taking.
Within Plaintiffsâ argument that the contested Ordinances constitute a
physical invasion of the Property, Plaintiffs contend that if this Court determines
that public trust rights apply to the dry sand portion of the Property, we should still
find a taking has occurred. Plaintiffs argue that the beach equipment regulation
âimposed new and excessive burdens on an existing easement, without
compensation.â However, Plaintiffs do not argue that the beach equipment
restrictions are an invalid use of the Townâs police power. Plaintiffs cite to no
authority in support of their argument that imposing certain restrictions on the
placement of beach equipment, which might result in occasional or even regular
diversion of beach traffic on the Property, could constitute an invalid use of the police
power. Nor do Plaintiffs argue or demonstrate that the ordinance âis so unreasonable
or arbitrary as virtually to deprive a person of the complete use and enjoyment of his
property, [so that] it comes within the purview of the law of eminent domain.â Kirby,
__ N.C. App. at __, 769 S.E.2d at 230 (citation omitted). Plaintiffs also fail to âshow
that [the] regulation deprives the owner of all economically beneficial or productive
use of the land[.]â Piedmont Triad Regâl Water Auth. v. Unger, 154 N.C. App. 589,
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
592, 572 S.E.2d 832, 835 (2002), see also Slavin, 160 N.C. App. 57, 584 S.E.2d 100.
In fact, Plaintiffs make no argument implicating regulatory takings jurisprudence.
Assuming, arguendo, Plaintiffs argued that a regulatory taking had occurred,
this argument would fail.
Land-use regulations are ubiquitous and most of them
impact property values in some tangential way â often in
completely unanticipated ways. Treating them all as per
se takings would transform government regulation into a
luxury few governments could afford. By contrast, physical
appropriations are relatively rare, easily identified, and
usually represent a greater affront to individual property
rights. âThis case does not present the âclassi[c] takingâ in
which the government directly appropriates private
property for its own use,â instead the interference with
property rights âarises from some public program adjusting
the benefits and burdens of economic life to promote the
common good[.]â
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S.
302, 324-25, 152 L. Ed. 2d 517, 541-42 (2002) (citations omitted). The United States
Supreme Court then went on to state:
[E]ven though multiple factors are relevant in the analysis
of regulatory takings claims, in such cases we must focus
on âthe parcel as a wholeâ:
ââTakingâ jurisprudence does not divide a single parcel
into discrete segments and attempt to determine
whether rights in a particular segment have been
entirely abrogated. In deciding whether a particular
governmental action has effected a taking, this Court
focuses rather both on the character of the action and
on the nature and extent of the interference with rights
in the parcel as a whole[.]â
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
This requirement that âthe aggregate must be viewed in its
entiretyâ . . . clarifies why restrictions on the use of only
limited portions of the parcel, such as setback ordinances,
. . . were not considered regulatory takings. In each of these
cases, we affirmed that âwhere an owner possesses a full
âbundleâ of property rights, the destruction of one âstrandâ of
the bundle is not a taking.â
Id. at 327, 152 L. Ed. 2d at 543 (citations omitted). Plaintiffs fail to forecast evidence
that the regulation restricting certain uses of a portion of the Property could rise to
the level of a taking of the entire Property.
We note that our General Assembly has addressed the specific issue of
regulating beach equipment on North Carolina ocean beaches in legislation that
became effective on 23 August 2013. N.C. Gen. Stat. § 160A-205, entitled âCities
enforce ordinances within public trust areas,â states:
(a) Notwithstanding the provisions of G.S. 113-131 or any
other provision of law, a city may, by ordinance, define,
prohibit, regulate, or abate acts, omissions, or conditions
upon the Stateâs ocean beaches and prevent or abate any
unreasonable restriction of the publicâs rights to use the
Stateâs ocean beaches. In addition, a city may, in the
interest of promoting the health, safety, and welfare of the
public, regulate, restrict, or prohibit the placement,
maintenance, location, or use of equipment, personal
property, or debris upon the Stateâs ocean beaches. A city
may enforce any ordinance adopted pursuant to this
section or any other provision of law upon the Stateâs ocean
beaches located within or adjacent to the cityâs
jurisdictional boundaries to the same extent that a city
may enforce ordinances within the cityâs jurisdictional
boundaries. A city may enforce an ordinance adopted
pursuant to this section by any remedy provided for in G.S.
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
160A-175. For purposes of this section, the term âocean
beachesâ has the same meaning as in G.S. 77-20(e).
(b) Nothing in this section shall be construed to (i) limit the
authority of the State or any State agency to regulate the
Stateâs ocean beaches as authorized by G.S. 113-131, or
common law as interpreted and applied by the courts of
this State; (ii) limit any other authority granted to cities by
the State to regulate the Stateâs ocean beaches; (iii) deny
the existence of the authority recognized in this section
prior to the date this section becomes effective; (iv) impair
the right of the people of this State to the customary free
use and enjoyment of the Stateâs ocean beaches, which
rights remain reserved to the people of this State as
provided in G.S. 77-20(d); (v) change or modify the
riparian, littoral, or other ownership rights of owners of
property bounded by the Atlantic Ocean; or (vi) apply to the
removal of permanent residential or commercial structures
and appurtenances thereto from the Stateâs ocean beaches.
N.C. Gen. Stat. § 160A-205 (2013). This provision is found in Chapter 160A, Article
8 â âDelegation and Exercise of the General Police Power.â The 2013 Ordinances
were adopted subsequent to the effective date of this legislation.
We hold that passage of Section 5-102 of the 2010 Ordinances, and Section 5-
19 of the 2013 Ordinances, constituted legitimate uses of the Townâs police power.
We hold that the regulation of the use of certain beach equipment, on public trust
areas of the ocean beaches within the Townâs jurisdiction, to facilitate the free
movement of emergency and service vehicles, was ââwithin the scope of the [police]
power[.]ââ Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14 (1989)
(citation omitted). Further, the ââmeans chosen to regulate,ââ prohibiting large beach
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
equipment within a twenty-foot-wide strip along the landward edge of the ocean
beach, were ââreasonable.ââ Id. (citation omitted).
C.
The contested provisions in the 2010 Ordinances and the 2013 Ordinances did
not result in a âtakingâ of the Property. First, though Plaintiffs argue that the
Ordinances deprived them of âthe right to control and deny access to others,â as
discussed above, it is not the Ordinances that authorize public access to the dry sand
portion of the Property; public access is permitted, and in fact guaranteed, pursuant
to the associated public trust rights. See Fabrikant, 174 N.C. App. at 41, 621 S.E.2d
at 27. The Ordinances restrict and regulate certain public and private uses pursuant
to the Townâs police power. The Townâs reservation of an obstruction-free corridor on
the Property for emergency use constitutes a greater imposition on Plaintiffsâ
property rights, but does not rise to the level of a taking.
Though Plaintiffs argue that âthe Town has made it impossible for [them] to
make any meaningful use of the dry [sand] [P]roperty[,]â Plaintiffs retain full use of,
and rights in, the majority of the Property. Tahoe-Sierra, 535 U.S. at 327, 152 L. Ed.
2d at 543. Plaintiffsâ rights in the dry sand portion of all but the twenty-foot-wide
strip of the Property are the same as when they purchased the Property. Id.
Concerning the twenty-foot-wide strip, Plaintiffs retain all the rights they had when
they purchased the Property other than the right to use large beach equipment on
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NIES V. TOWN OF EMERALD ISLE
Opinion of the Court
that portion of the Property âbetween May 1 and September 14 of each year.â The
Town, along with the public, already had the right to drive on dry sand portions of
the Property before Plaintiffs purchased it. We affirm the judgment of the trial court.
AFFIRMED.
Judges ELMORE and DAVIS concur.
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