NC beach case about government overreach, not greed

Some have suggested that the beach property rights case between Diane and Gregory Nies and the Town of Emerald Isle, now before the N.C. Supreme Court, pits property rights against public recreation. This is incorrect. The case pits constitutionally protected property rights against lawless government.

The Nies own a square piece of dry sand property lying between the dunes adjacent to their backyard and the wet beach. They have paid taxes on it for 15 years. It’s their land. The Town of Emerald Isle does not deny this.

The town has, however, desired to make the Nies’ dry sand parcel into town property for a number of years. In 2004, it began a court process to take it by eminent domain, but abandoned that effort when the Nies protested. The town did not give up, though. It just switched tactics.

Between 2004 and 2010, it passed laws that made the Nies’ land into a service road for all kinds of town vehicles. It sold permits to the public to drive and park on their land. It set rules for the use of the land and limited the Nies’ use. When it was done, it left the Nies with no rights in their land different from the public or government, except the dubious responsibility to keep paying taxes and perhaps bear liability for injuries.

Now, the Nies understand that the government must sometimes take private land for important public uses. But they also understand that, in our system, the government has rules, too. The North Carolina Constitution ensures that citizens get due process of law before the government takes their land. And therein lies the rub. The town threw out due process when it decided to make the Nies’ land into town land.

An end-run around the law

It could have gone through with eminent domain. But it didn’t. It could have gone to court to prove that there is an old right-of-way on the land. But it didn’t. It could have asked the Nies for permission to enter, but it didn’t. It could have bought a right-of-way from them, but it didn’t.

The town took out its pen and passed ordinances that labeled the Nies’ land as “public trust” property – in other words, “public” land. This was an end-run around the law. So the Nies sued. They did not sue over sunbathing or people walking along the shore. They sued over the conversion of their land into a road and parking lot without due process or compensation or basic fairness.

With the help of Pacific Legal Foundation, a nonprofit, nonpartisan organization that defends constitutional liberties, the Nies will soon have their day in court in the North Carolina Supreme Court. If they win, beach recreation and tourism will continue on as always. The government will still have the ability to take private beach land. But it will be stopped from violating the most basic of American principles – that the government is not above the law and must play by constitutional rules when taking property.

The town says it deserves a pass because its actions serve very important public beach needs. It forgets that the whole point of the Constitution is to make sure the government respects citizen rights, including property rights, even when it is inconvenient or expensive to do so. After all, if the government can occupy private land without first paying just compensation or giving owners due process just because it thinks it has a really good reason, all property in North Carolina is at risk.

This story was originally published September 6, 2016 at 4:42 PM with the headline "NC beach case about government overreach, not greed."