NC Supreme Court won’t hear Emerald Isle case about beach access

The state Supreme Court on Wednesday decided against hearing an appeal from a couple whose lawsuit against Emerald Isle had the potential to limit public access to large stretches of North Carolina’s 301 miles of shoreline.

The high court’s action means the state Court of Appeals ruling stands. In a unanimous decision, the three appeals court judges who heard the case found 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.”

“The NC Supreme Court’s dismissal represents a victory for the Town of Emerald Isle in this specific case,” Town Manager Frank Rush said in a statement. “However, it represents a much more important victory for current and future generations of North Carolina residents and visitors who will continue to enjoy the ocean beach experience and build lasting family memories along our beautiful coastline.”

Gregory and Diane Nies, a retired couple from New Jersey, contended in a long-running legal battle with the town of Emerald Isle that town officials had engaged in a public taking of their property without compensating them.

An Emerald Isle ordinance adopted in 2010 bars beachfront property owners from putting any beach equipment or structures “within an area 20 feet seaward of the base of the frontal dunes.” The intent of the 2010 ordinance, according to Emerald Isle officials, is to establish an upper beach lane through which garbage trucks, police, emergency vehicles and other public service activities can proceed unfettered by private structures.

The Nieses, who owned a beachfront home in Emerald Isle from 2001 until this fall when they sold it for $1.3 million, argued that they believed the town code limited them from using land that they contended was theirs.

The lawsuit drew widespread interest within the state and beyond.

For many years, visitors to North Carolina’s coast have enjoyed open access to sandy beaches from the water’s edge to the ocean-side base of the dunes. They can put down a towel, hunt for seashells, play bocce, fish and do much more without worrying about property lines.

Even though the Nieses sold their Emerald Isle property on Sept. 30, Pacific Legal Foundation, a California-based property rights organization that has represented the couple, argued that their claim had not been rendered moot by the sale.

A long list of organizations lined up to argue whether the state’s long-held tradition of open access is the law of the land or whether private property rights embedded in the state and U.S. constitutions trump the practice.

Some wondered why the state Supreme Court initially agreed to review the case after the Court of Appeals issued a unanimous ruling that did not obligate the justices to weigh in on the issue. The decision Wednesday came without explanation.

The state’s highest court will flip to a 4-3 Democratic majority next month after Mike Morgan, a Democrat and Wake County Superior Court judge, joins the bench. Morgan defeated incumbent Justice Bob Edmunds, a Republican, with 54.45 percent of the vote.

Ten days after the election, the court rescheduled the case of Nies versus the Town of Emerald Isle to Jan. 10 from its original Dec. 14 hearing date. Then Wednesday, after the justices met in conference, the case was dismissed.

This story was originally published December 14, 2016 at 3:19 PM with the headline "NC Supreme Court won’t hear Emerald Isle case about beach access."