               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 (“Plaintiffs”) purchased an oceanfront

property (“the Property”) in Defendant Town of Emerald Isle (“the Town”) 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



        “Generally speaking, state law defines property interests[.]” 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 Carolina’s 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 “foreshore,” or “wet sand beach,” 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. “Mean high water mark” 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 “mean”

or “average high-tide.” 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 “mean high tide” 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 “dry sand beach” 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 “‘a periodic variation in the rise of water above sea
level having a period of 18.6 years[.]’” Id.

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                                  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:


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                                   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 “nourishment” projects.

The purpose of these projects has been to control or remediate erosion of the Town’s

beaches. The Town embarked on one such project in 2003 (“the Project”). According

to Plaintiffs, the result of the Project was an extension of the dry sand beach from

Plaintiffs’ property line – the pre-Project mean high water mark – to a new mean high

water mark located seaward of their property line. Therefore, the State now owns

dry sand beach – which it holds for the public trust – between Plaintiffs’ property line

and the current mean high water mark – which no longer represents Plaintiffs’

property line.

      The Town was incorporated in 1957. The public has enjoyed access to its

beaches, including both the publicly-owned foreshore – or wet sand beach – 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,



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                           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 (“Rush”) who, at the time of the summary judgment hearing,

had been the Town’s Town Manager since July 2001, “[b]each driving has been

allowed within the Town since its incorporation in 1957.” Rush averred that, since

at least 1980, the Town had been restricting beach driving within its borders to a

“permitted driving area,” which was defined in the Emerald Isle Code of Ordinances

(Oct. 2010) (“the Ordinances” generally, or “the 2010 Ordinances” 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 “re-adopt [the Town’s] original Beach Vehicular

Ordinance[.]” The record does not contain the Carteret County Beach Vehicular

Ordinance, or any pre-1980 ordinances related to beach driving.

      According to Plaintiffs: “Historically, the [Ordinances] permitted public driving

on”

            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, “historically,” the public has

been driving on private property dry sand beach, and that this behavior has been

regulated by the Town. However, the ordinances “allowing” 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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                                 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). “Beach strand” was defined by

the 2010 Ordinances as “all land between the low water mark of the Atlantic Ocean

and the base of the frontal dunes.” 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:

“Unless otherwise noted, this chapter shall be applicable on the public trust beach


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                                  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.” Emerald Isle Code of Ordinances

§ 5-1 (Oct. 2013). Sections 5-60 and 5-61 of the 2013 Ordinances limit driving on “the

public trust beach area” 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.

Plaintiffs’ 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 Plaintiffs’ action was

dismissed. Plaintiffs appeal.

                                          II.



                                         -8-
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                                    Opinion of the Court



      Plaintiffs’ 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 “the 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.” N.C.G.S. §
             1A–1, 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 “the law involving the public trust doctrine

has been recognized . . . as having become unnecessarily complex and at times

conflicting.” 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:



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                                   Opinion of the Court



             N.C.G.S. § 4–1 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 “common law” 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. § 4–1. Further, much of the common
             law that is in force by virtue of N.C.G.S. § 4–1 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) (“The 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.”). The

General Assembly has the power to make or amend laws so long as those laws do not




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                                   Opinion of the Court



offend the constitutions of our State or the United States. As our Supreme Court has

recognized:

              “(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.” Absent
              such constitutional restraint, questions as to public policy
              are for legislative determination.              When the
              constitutionality of a statute is challenged, “every
              presumption is to be indulged in favor of its validity.”

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, “public trust rights are ‘those 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 State’s ocean
              and estuarine beaches and public access to the beaches.’”
              Friends of Hatteras Island Nat’l Historic Maritime Forest
              Land Trust for Pres., Inc. v. Coastal Res. Comm’n, 117 N.C.
              App. 556, 574, 452 S.E.2d 337, 348 (1995) (emphasis
              omitted) (quoting N.C. Gen. Stat. § 1–45.1 (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 “the clearest and most express terms.” 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:

             “public trust resources” 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 “right to freely use and enjoy

the State’s ocean and estuarine beaches and public access to the beaches.” 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 “ocean beaches,” the General Assembly has found:

             The public has traditionally fully enjoyed the State’s
             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 “ocean beaches” as follows:

             “[O]cean beaches” 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 “ocean

beaches,” 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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                                  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 “dry sand beach”
             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) (“Advisory Opinion”)

(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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                                   Opinion of the Court



      There is, however, potential ambiguity in the definition of “ocean beaches”

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 Carolina’s 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 “public trust
             doctrine.” They argue that holding our State’s 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), rev’d, Concerned Citizens v. Holden Beach



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                                        Opinion of the Court



Enterprises, 329 N.C. 37, 404 S.E.2d 677 (1991).                However, our Supreme Court

reversed this Court’s 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 “custom” has been used to help

determine where and how the public trust doctrine might apply in certain

circumstances. The General Assembly apparently considers “custom” 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 “public ha[s] made frequent, uninterrupted, and unobstructed use of the
full width and breadth of the ocean beaches of this State from time immemorial,” 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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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 Carolina’s 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 Plaintiffs’ 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 (“[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.”).

      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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                                  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): “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.” Id. We

adopt this test because it most closely reflects what the majority of North Carolinians

understand as a “public” 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) (“the custom of the dry sand

beaches being open to public trust uses has a long history in North Carolina”). We

hold that the “ocean beaches” of North Carolina include both the wet sand beaches –

generally, but not exclusively, publically owned – and the dry sand beaches –

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 “storm” 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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                                    Opinion of the Court



the “storm trash line” 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 public’s right to use the public trust dry sand beaches are

established through appropriate use of the State’s 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 owner’s estate shows that the
             proscribed use interests were not part of his title to begin
             with.     This accords, we think, with our “takings”
             jurisprudence, which has traditionally been guided by the
             understandings of our citizens regarding the content of,
             and the State’s power over, the “bundle of rights” 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; “[a]s long recognized, some values are
             enjoyed under an implied limitation and must yield to the
             police power.”

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 “bundle of rights” purchased by Plaintiffs in 2001.


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                                       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

“allowing” 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

Plaintiffs’ dry sand beach without compensating Plaintiffs. We hold, on these facts,

that it may.

       Public trust rights in Plaintiffs’ property are held by the State concurrently

with Plaintiffs’ 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 – “nor shall private property be taken
               for public use, without just compensation,” U.S. Const.,
               Amdt. 5 – applies as fully to the taking of a landowner’s
               [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 “aims to
               identify regulatory actions that are functionally equivalent
               to the classic taking.”

Stop the Beach, 560 U.S. at 713, 177 L. Ed. 2d at 195 (citations omitted).

       As Plaintiffs acknowledge: “Takings tests vary depending on whether the

challenged imposition is a physical invasion of property or a regulatory restriction on

the use of property.” “In 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.” 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 “physical

invasions” 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 Plaintiffs’ argument is predicated on Plaintiffs’ 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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                                  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 “taking.”

      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) (“A 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.”).



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                                  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 “within 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.” Emerald Isle

Code of Ordinances § 5-102 (Jan. 2010). Plaintiffs argue that the beach equipment

ordinance prevents them from “station[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.”

      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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                                        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 Town’s limits, through the Town’s police power.

Therefore, no part of Section 5-19 of the 2013 Ordinances5 “allowing” or regulating

driving on the dry sand portion of the Property can constitute a taking.

       As our Supreme Court has noted:

               “The 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.” “The state must compensate for property
               rights taken by eminent domain; damages resulting from
               the exercise of the police power are noncompensable.”


       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:

             “What 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.” “The
             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.” “The 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.” “Upon 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.”

                   [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.

             “Laws and regulations of a police nature . . . do not
             appropriate private property for public use, but simply
             regulate its use and enjoyment by the owner.” “‘Regulation’
             implies a degree of control according to certain prescribed
             rules, usually in the form of restrictions imposed on a
             person’s otherwise free use of the property subject to the
             regulation.”




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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 “physical

invasion” 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 Plaintiffs’ 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

“imposed new and excessive burdens on an existing easement, without

compensation.”     However, Plaintiffs do not argue that the beach equipment

restrictions are an invalid use of the Town’s 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 “is 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.” Kirby,

__ N.C. App. at __, 769 S.E.2d at 230 (citation omitted). Plaintiffs also fail to “show

that [the] regulation deprives the owner of all economically beneficial or productive

use of the land[.]” Piedmont Triad Reg’l Water Auth. v. Unger, 154 N.C. App. 589,



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                                  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 – 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. “This case does not present the ‘classi[c] taking’ in
            which the government directly appropriates private
            property for its own use,” instead the interference with
            property rights “arises from some public program adjusting
            the benefits and burdens of economic life to promote the
            common good[.]”

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 “the parcel as a whole”:

                 “‘Taking’ 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[.]”


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                                   Opinion of the Court




             This requirement that “the aggregate must be viewed in its
             entirety” . . . 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 “where an owner possesses a full
             ‘bundle’ of property rights, the destruction of one ‘strand’ of
             the bundle is not a taking.”

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 “Cities

enforce ordinances within public trust areas,” 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 State’s ocean beaches and prevent or abate any
             unreasonable restriction of the public’s rights to use the
             State’s 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 State’s ocean beaches. A city
             may enforce any ordinance adopted pursuant to this
             section or any other provision of law upon the State’s ocean
             beaches located within or adjacent to the city’s
             jurisdictional boundaries to the same extent that a city
             may enforce ordinances within the city’s 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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                                  Opinion of the Court



             160A-175. For purposes of this section, the term “ocean
             beaches” 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
            State’s 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 State’s 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 State’s 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 State’s ocean beaches.
N.C. Gen. Stat. § 160A-205 (2013). This provision is found in Chapter 160A, Article

8 – “Delegation and Exercise of the General Police Power.” 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 Town’s police power.

We hold that the regulation of the use of certain beach equipment, on public trust

areas of the ocean beaches within the Town’s jurisdiction, to facilitate the free

movement of emergency and service vehicles, was “‘within the scope of the [police]

power[.]’” Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14 (1989)

(citation omitted). Further, the “‘means chosen to regulate,’” prohibiting large beach




                                         - 29 -
                            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 “‘reasonable.’” Id. (citation omitted).

                                           C.

      The contested provisions in the 2010 Ordinances and the 2013 Ordinances did

not result in a “taking” of the Property. First, though Plaintiffs argue that the

Ordinances deprived them of “the right to control and deny access to others,” 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 Town’s police power. The Town’s reservation of an obstruction-free corridor on

the Property for emergency use constitutes a greater imposition on Plaintiffs’

property rights, but does not rise to the level of a taking.

      Though Plaintiffs argue that “the Town has made it impossible for [them] to

make any meaningful use of the dry [sand] [P]roperty[,]” 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. Plaintiffs’ 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



                                          - 30 -
                           NIES V. TOWN OF EMERALD ISLE

                                  Opinion of the Court



that portion of the Property “between May 1 and September 14 of each year.” 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.




                                         - 31 -
