Life has its share of unpleasant surprises, so when their beachfront home on North Carolina’s storied Outer Banks burned down in 2016, Michael and Cathy Zito did what other hardworking, tough people do: They dealt with their loss and set out to build a new home right where they old one had stood.
That’s when their troubles really began.
Standing in their way were the Town of Nags Head and state bureaucrats on the North Carolina Coastal Resources Commission. Together, they have thwarted every effort the couple has made to replace their home. In what they thought would be little more than a formality, the Zitos applied for permits from Nags Head officials to build their new home on their property. Their application was denied, because – thanks to natural beach erosion – the ocean was closer than it had been when the house was constructed in 1982. It was now within the legal setback line from the ocean and no longer 60 feet from the vegetation line. Of course, had their house not burned down, the situation with respect to the distance from the ocean and the vegetation line would be exactly the same. But that insight eluded Nags Head officials.
Absurdity upon Absurdity
Seeking sanity, Michael and Cathy took their case to the North Carolina Coastal Resources Commission. Big mistake. The state bureaucrats comprising the Commission were no more reasonable than Nags Head officials had been. They inexplicably argued that not being able to build anything on their property did not constitute an “undue hardship.”
Today, the lot stands empty, but the couple must still pay annual taxes on a property they can’t use. What makes their situation even more absurd is that neighboring homes along the beach are just as far from the ocean as their home would be, yet, somehow, these homes are not in violation of the setback ordinances. Selling what is now a vacant lot is not an option, because no one will buy an oceanfront property on which you can build – nothing.
“What happened to the Zitos is unconstitutional,” writes Erin Wilcox, an attorney with the Pacific Legal Foundation (PLF), in the Carolina Journal. “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.” Wilcox is co-counsel for PLF in Zito v. North Carolina Coastal Resources Commission; Town of Nags Head.
“A Severe Violation of Constitutional Rights”
The case represents what is known as a “regulatory taking.” “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,” Wilcox explains. “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 case is now before the Fourth U.S. Circuit Court of Appeals in Richmond, Virginia. Michael and Cathy recently told the court that if the government wants their property, it’s going to have to pay for it. Having faced down storms, erosion, and fire, they are no strangers to rough seas. In Wilcox’s view, “A handful of bureaucrats with no respect for the Constitution don’t stand a chance.”
May 29, 2021 By Bonner Cohen, Ph. D.