Issues and Cases

Government can’t use a storm as an excuse to deny property rights

Sansotta v. Town of Nags Head

Contact: J. David Breemer

Status: Victory! The court issued an order on cross-motions for summary judgment on Nov. 6, 2014. A partial win for the property owners! The case was favorably settled and the parties filed a joint stipulated dismissal on April 1, 2015.

Roc Sansotta's beachfront propertyRoc Sansotta and five other property owners own beachfront cottages in Nags Head, North Carolina.  When a 2009 storm hit the area, the Town stopped the owners from protecting their property from erosion.  The storm did some minor damage and removed sand from around the homes.  After the storm, the Town declared the cottages to be nuisances because the Town had decided the cottages had come to be on “public trust” lands.  In the Town’s view, whenever erosion pushes the vegetation line or dune line landward, any property that is seaward of that line instantly becomes part of the public beach and must be opened up for public access, regardless of whether it is privately owned and developed.  Under this theory, the Town decided the owners’ lots were impressed with a public trust easement, ordered the owners to remove their cottages, barred them from repairing storm damage and fined them for every day the cottages remained in their historic location.  The Town gave the owners no administrative hearing before it took such actions, offered no compensation to them, and refused to enforce such restrictions against other property owners who the Town knew also owned cottages on alleged “public trust” lands.

The cottage owners sued in state court, alleging the Town took their property without just compensation and violated their federal due process and equal protection rights.  They also asserted various state law claims that effectively seek a ruling holding that the cottages are not on public trust lands.  Before the state court could rule, the Town removed the case to the federal court for the Eastern District of North Carolina.

The federal district court subsequently held the owners had to litigate in state court- where they were before the Town withdrew the case to federal court — before their takings claims were ripe in federal court.  The court further rejected the due process and equal protection claims on the merits.

PLF attorneys are now representing the owners on appeal at the Fourth Circuit Court of Appeals where they will argue, among other things, that a government defendant cannot escape a federal takings claim on the ground that it is unripe for lack of prior state court litigation when the government’s own actions in removing the case to federal court prevented that very state court litigation and thus precluded the owners from ripening their claim.  They will also argue that the Town is liable for violating their federal procedural due process rights by failing to give them adequate process before targeting their cottages for removal.

 
 

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