Lawsuit filed against North Carolina after ocean takes beach property

As climate change fuels rising seas and erodes shorelines, North Carolina’s longstanding approach to preserving the public’s right of access to the beach is being put to the test. 

The long-running Zito v. North Carolina Coastal Resources Commission lawsuit challenged the authority of states like North Carolina and towns like Nags Head to balance oceanfront construction requests with the reality of a fast-eroding coastline and rising seas. The property owners who filed suit wanted regulators to cast aside longstanding setback rules designed to keep the beaches open and accessible.

Federal judges and the Supreme Court have declined to hear the case, but it’s not clear that will end the dispute. 

SELC is supporting North Carolina in its defense of regulations outlining where a property owner can build a home on an oceanfront parcel based on the building’s proximity to the ocean. Those regulations are necessary, SELC argues, so coastal states can adapt to ever-changing shorelines, so visitors can enjoy public access to the sands and surf, and so the beach can be free from hazards like nail-laden construction debris.

Here’s the background:

When a home at 10224 East Seagull Drive in Nags Head was first built decades ago, the beachfront lot was far enough from the ocean to satisfy state requirements. Years later, when Michael and Catherine Zito bought the property in 2008 as a vacation home, erosion had already moved the surf much closer to the house.

However, it wasn’t the encroaching water that sent this case to court. It was a fire.

After their home was destroyed by a blaze, the couple sought permits to rebuild. By then, erosion and rising sea levels meant that where the Zitos wanted to rebuild was too close to the ocean and violated the state’s longstanding setback rules. Essentially, the Atlantic Ocean had encroached on the property, and their request was denied. 

This case is about more than one home and one building permit. It goes to the heart of North Carolina’s ability to protect the natural resources of its dynamic coastline.

Sierra Weaver, Leader of SELC’s Coast and Wetlands Team

The Zitos sued claiming that if North Carolina enforced its setback rules and denied the building permit, that was essentially “taking” their property.

“The Zitos are saying the state has taken their property and must pay them for it. In reality, the Atlantic Ocean took it,” said Sierra Weaver, leader of SELC’s Coast and Wetlands Team. “But this case is about more than one home and one building permit. It goes to the heart of North Carolina’s ability to protect the natural resources of its dynamic coastline.”

The North Carolina Supreme Court has already held that, unlike a home with a rigid lot, property rights and boundaries don’t remain static when a parcel is continually reshaped by churning water. To avoid North Carolina law, the Zitos sued in federal court but federal judges declined to take the case, ruling the matter should be handled in state court. The Zitos’ attorneys asked the Supreme Court hear it, but the request was denied.

Ironically, even if the Zitos had prevailed and rebuilt their home, the erosion is so bad at their Nags Head address that, according to one of SELC’s filings, “as soon as 2024, the house would effectively be in the ocean.”