Maryland couple sues after Nags Head blocks rebuilding oceanfront rental

The house stood on the lot from 1982 until 2016. [Photo from Dare County tax records]

A Maryland couple whose oceanfront vacation rental in South Nags Head burned down over two years ago has filed suit against the North Carolina Coastal Resources Commission because they have been prevented from rebuilding the house due to its proximity to the ocean.

Pacific Legal Foundation, a California-based firm that tried and failed to overturn North Carolina’s law blocking privately-owned beaches, is representing Michael and Cathy Zito in the case filed March 6.

The suit seeks a total of $1.4 million in damages and relief. Pacific Legal says they are representing the couple for free, although the suit does also request the state pay attorney fees.

“They’ve filed a federal lawsuit challenging the state and local governments’ decisions to deny the Zitos all use and value of their beach lot as an unlawful property taking under the U.S. and North Carolina Constitutions,” according to a post on Pacific Legal’s website.

According to the firm, the Zito’s purchased the 1,700 square foot house on East Seagull Drive in 2008. It was built in 1982.

Rapid erosion along South Nags Head over the last 30 years claimed the dunes, and then the beachside houses across the street, giving the Zito’s oceanfront property.

That also meant that under the state’s Coastal Area Management Act and Division of Coastal Management regulations, the 60-foot setback “first stable line of vegetation” had also moved to the west of the property.

Because the property was platted prior to 1979, the lot is grandfathered into the 60-foot line, rather than the 180-foot setback for construction on newer lots.

On Oct. 16, 2016, the house was destroyed by a fire that was believed to have been caused by an electrical malfunction. It was unoccupied at the time and no one was hurt.

Pacific Legal said the Zitos wanted to build a similar-sized replacement on the property.

The Town of Nags Head denied the initial CAMA permit and then the Coastal Resources Commission denied their request for a variance, because they were seeking to rebuild more than 50-percent of the structure inside the setback.

“The Fifth Amendment and the North Carolina Constitution say the government can’t take your property without paying a fair price, and it certainly can’t enforce laws that regulate the use and value of your property out of existence,” said attorney Erin Wilcox in a blogpost.

The plaintiffs also claim that the current setback line is invalid because of the town’s 2011 beach nourishment project.

While the town has been left out of the suit, this is not Pacific Legal’s first entanglement with the State of North Carolina.

Pacific Legal represented a Emerald Isle couple in a suit filed in 2011 against North Carolina, challenging the state’s “public trust beach” law. The state Supreme Court dismissed that case in 2016.

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  1. One can pretty much expect this one to be dismissed by the court. That’s how they “work it” in NC. Right or wrong is irrelevant. “Good ole” politics wins every single time.

    • Would you want a septic tank built in your swimming pool ?? If there is no land, where will you put it, in the ocean ??? Yes the ” good ole boy” wins again. It’s a shame the good ole boy is Good, I guess he doesn’t count any more.

  2. There is no political element to this, it is the common good. all over the country zoning changes rebuilding rules and in this case the loss of the land as valued is not really that great. The fact is this land will become wet and this home will fail. These people knew this was a possibility by simply looking out of the windows. Why should CAMA bend and then allow a government subsidy to make this new construction even possible? Anything afoul of CAMA is also afoul of FEMA’s flood insurance program and the project is reckless. Why should we be subsidizing the construction of a sure loss?

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