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May 8, 2021

Guest column: Beach home case shows more insidious example of property rights conflict

By Erin Wilcox

When is losing the entire value of your property due to government regulation, not an “undue hardship”? According to the North Carolina Coastal Resources Commission, the answer is whenever your home is on the coast.

In October 2016, Michael and Cathy Zito’s Nags Head beach house burned to the ground. Luckily no one was hurt, but the bureaucratic nightmare they faced as they attempted to rebuild was incredibly painful.

The Zitos’ house was built in 1982 when it was landward of the legal setback line for ocean building. By the time the house burned down in 2016, natural erosion had moved the ocean closer to the Zitos’ house. When the Zitos asked the town of Nags Head for permission to rebuild on the same footprint as their previous home, their request was denied because it was no longer 60 feet from the vegetation line. Not only could Michael and Cathy not rebuild their home on their property, but they also couldn’t build anything at all. Their lot was now only good for standing and looking at their beautiful ocean view.

Hoping for relief from this unfair decision, Michael and Cathy took their case to the North Carolina Coastal Resources Commission. Their request for permission to rebuild was denied there, too, when the commission inexplicably found that being prohibited from building anything at all on your property was not an “undue hardship.”

The Zitos’ now-empty lot is in a dense beachfront neighborhood, lined with homes on either side that are just as close to the ocean. Nags Head has a public open space, free of charge. The Zitos have nothing except continuing tax bills and a vacant, unusable lot.

What happened to the Zitos is unconstitutional. Under both the United States and North Carolina constitutions, the government cannot take private property without paying a fair price. It can’t enforce laws that regulate the use and value of your property out of existence.

Some violations of private property rights are easy to spot. For example, government agents go to a property, post a guard or build a fence and keep the lawful owner out. When that happens, the Constitution requires the property owner to be paid a fair price for taking his or her property.

A more insidious and far more frequent violation of private property rights is what happened to the Zitos. In these situations, the government decides that it would prefer a piece of property to be vacant but does not want to buy the property from the landowner. Instead, the government enforces regulations to prevent the landowner from doing anything with the property except leave it as open space.  It’s a win-win for the government — it gets what it wants for free. But for property owners who suddenly find themselves with a completely worthless lot, it’s a severe violation of their constitutional rights.

The Zitos have spent a great deal of time and money going multiple rounds with their local and state governments, and they are still left without their home or the value of their property. All coastal landowners in North Carolina are still one hurricane or fire away from losing both their homes and their ability to rebuild.

Fortunately, Michael and Cathy aren’t done fighting. They joined forces with the nonprofit Pacific Legal Foundation to file a lawsuit in federal court challenging this illegal land grab. The Zitos told the court that if the government wants their property, it’s going to have to obey the state and federal constitutions by paying a fair price. So now it’s up to the Fourth Circuit Court of Appeals in Richmond, Virginia, to make the government play by the rules.

You don’t surrender your property rights just because you live on the beach. As beachfront homeowners, the Zitos have faced down storms, erosion and fire. A handful of bureaucrats with no respect for the Constitution don’t stand a chance.

Erin Wilcox is an attorney with Pacific Legal Foundation and co-counsel on Zito v. North Carolina Coastal Resource Commission; Town of Nags Head.

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