Sansotta v. Town of Nags Head

863 F.Supp.2d 495

Roc F. SANSOTTA, Trustee and Executor for the Estate of Father Joseph Klaus, et al., Plaintiffs,

v.TOWN OF NAGS HEAD, Defendant.

No. 2:10–CV–29–D.

United States District Court,

E.D. North Carolina,

Northern Division.

March 28, 2012.

Jason Charles Pfister, Keith P. Anthony, K & L Gates LLP, Research Triangle Park, NC, William J. Brian, Jr., K & L Gates, LLP, Morrisville, NC, for Plaintiffs.

Benjamin Marshall Gallop, John D. Leidy, M.H. Hood Ellis, L.P. Hornthal, Jr., Hornthal, Riley, Ellis & Maland, L.L.P., Nags Head, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief Judge.

The Town of Nags Head (“Town” or “defendant”) removed this case from Superior Court of Dare County, North Carolina (“Dare County Superior Court”), based on federal question jurisdiction. The case includes five federal claims, nine state-law claims, and four state-law counterclaims. For reasons explained below, the court grants summary judgment to the Town as to four of the federal claims and dismisses the fifth federal claim as unripe. The court remands the remaining state-law claims and counterclaims to Dare County Superior Court.

I.

This action concerns the Town's efforts to remove six oceanfront cottages located on Seagull Drive, Nags Head, North Carolina (the “Cottages”). Ralph and Gloria Tomita, Carole Shackelford, James Bergman, Linda Atsus, George Rusin, and the estate of Joseph Klaus (collectively “plaintiffs”) own the Cottages.2d Am. Compl. [D.E. 45] ¶¶ 1–12. Roc F. Sansotta (“Sansotta”) manages the Cottages on plaintiffs' behalf, and has partial ownership interests in five of the Cottages. Sansotta Aff. [D.E. 76–2] ¶¶ 2–4; Sansotta Dep.2037. Over the years, natural forces have gradually eroded the beach that once separated plaintiffs' Cottages from the Atlantic Ocean. See Ogburn Aff. [D.E. 85–2] ¶ 10; Def.'s Resp. to Interrog. [D.E. 79–4] ¶ 6. The beach's vegetation line is on the landward side of the Cottages. For nearly a decade, Sansotta has buffered the Cottages with sandbags to protect the Cottages from the ocean. See Sansotta Dep. 10608, 14849. Sansotta has also taken other measures to protect the Cottages from storm damage, such as making structural enhancements and strategically placing additional sand around the Cottages. See Sansotta Dep. 14647; Sansotta Aff. ¶¶ 6–10.

On November 12, 2009, a storm struck Nags Head (the “November Storm”). See Sansotta Aff. ¶¶ 10, 12. In anticipation of the November Storm, Sansotta hired contractors Wilmer Harper (“Harper”) and Michael Riddick (“Riddick”) to protect the Cottages by moving sand around the Cottages. See Sansotta Dep. 16561, 17172; Harper 1st Dep. 132; Harper 2d Dep. 5354; Riddick Dep. 6566. Harper arrived at the Cottages and began moving sand sometime between 6:15 and 6:45 a.m. on November 12, 2009. Harper 1st Dep. 310; Harper 2d Dep. 5254. At approximately 10:00 am., Riddick arrived to assist Harper. Riddick Dep. 67; Harper 1st Dep. 320. Harper and Riddick used heavy equipment, including a bulldozer, to move sand around the Cottages. Riddick Dep. 71–72; Harper 2d Dep. 73.

During the November Storm, the ocean breached Seagull Drive and washed out part of the roadway. Barile Dep. 4951; Osborne Dep. 7273; Brinkley Dep. 148. This caused a hole to develop in Seagull Drive. See Harper 2d Dep. 85–86, 111; Riddick Dep. 90; Sansotta Dep. 206; Barile Dep. 4551; Osborne Dep. 7273; Brinkley Dep. 145149. Town officials first observed the hole at approximately 6:30 a.m. on November 12, 2009. Barile Dep. 4551. The November Storm also washed water and debris across Seagull Drive. Barile Dep. 49–50; Brinkley Dep. 145, 168, 175. As a result, the Town erected a barricade across Seagull Drive during the morning of November 12, 2009, sometime between 7:00 a.m. and 9:00 a.m. See Harper 1st Dep. 31012; cf. Riddick Dep. 67. The Town did so because it considered Seagull Drive unsafe, and did not want individuals on the roadway. See Ogburn Dep. 5457; Wilson Dep. 110112; cf. Barile 45–46.

Despite the barricade, Harper and Riddick continued to work on Seagull Drive, moving sand around the Cottages. See Riddick Dep. 6772; Harper 1st Dep. 132, 32021; Wilson Dep. 90; Osborne Dep. 88–89; Brinkley Dep. 145148. At one point, Riddick and Harper filled the hole in Seagull Drive with sand and debris. See Riddick Dep. 90; Brinkley Dep. 14548, 17475, 210. At approximately 2:00 p.m. on November 12, 2009, the Town's staff met. Wilson Dep. 90. At the meeting, Town officials, including police chief Kevin Brinkley (“Chief Brinkley”), learned that people were working behind the Seagull Drive barricade. See Wilson Dep. 110112; Osborne Dep. 13638; Brinkley Dep. 117.

At approximately 3:00 p.m., Chief Brinkley and additional law enforcement officers arrived at the Cottages. Sansotta Aff. ¶¶ 5354; Brinkley Dep. 13439; see Sansotta Dep. 202–03. Chief Brinkley observed Harper and Riddick working on Seagull Drive, behind the barricade. See Brinkley Dep. 14547. Chief Brinkley yelled to Riddick, asking who had moved the barricade. Brinkley Dep. 17374; see also Riddick Dep. 13940. Riddick pointed to Harper, and Chief Brinkley motioned for Harper to approach. Brinkley Dep. 173–176; cf. Harper 2d Dep. 11819. Chief Brinkley told Harper that Seagull Drive was unsafe and that it was not safe for Harper to work behind the barricade. Brinkley Dep. 17679. Chief Brinkley requested that Harper move to the other side of the barricade. Brinkley Dep. 183; Harper 2d Dep. 11920, 123; see Sansotta Dep. 199, 226–27; Riddick Dep. 142. After speaking with Chief Brinkley, Harper called Sansotta, who happened to be en route to Seagull Drive. Cf. Sansotta Dep. 20001; Harper Dep. 12930. When Sansotta arrived, Harper informed Sansotta of Chief Brinkley's instructions. Sansotta Dep. 201–02. Sansotta did not speak with Chief Brinkley. Sansotta Dep. 201. Harper and Riddick stopped working and moved their equipment to the other side of the barricade. Harper Dep. 12021, 12324, 137; Riddick Dep. 14247; Sansotta Dep. 22627; Sansotta Aff. ¶ 5659.

On November 30, 2009, the Town issued a declaration of nuisance (“Nuisance Declaration”), an order of abatement, and a warning citation to plaintiffs. Ogburn Dep. 15254, Ex. 98; 2d Am. Compl. Ex. B. The Nuisance Declaration informed plaintiffs that the Cottages created a “likelihood of personal and property injury” and were located in the “public trust,” ¹ in violation of Town Ordinance § 16–31(6)(b) and (c) (“Ordinance 16–31(6)”).² 2d Am. Compl. Ex. B. The Town instructed plaintiffs to demolish the Cottages within eighteen days or face daily $100 fines. Id. The Town warned plaintiffs that it would take action to demolish the Cottages if plaintiffs refused to comply. Id. On January 27, 2010, the Town began assessing a civil penalty of $100 per day per Cottage. Ogburn Dep. 17476; Oakes Dep. 17374.

II.

On May 20, 2010, plaintiffs filed suit in Dare County Superior Court against the Town and the Town Manager, Timothy Wilson (“Wilson”) [D.E. 2, 2–1]. On June 15, 2010, the Town and Wilson filed notice of removal to this court based on a federal question [D.E. 1]. On June 24, 2010, Wilson filed an answer to plaintiffs' original complaint [D.E. 13].

On July 20, 2010, plaintiffs amended their complaint [D.E. 14]. On August 10, 2010, Wilson filed an answer to plaintiffs' amended complaint [D.E. 23]. On August 19, 2010, the Town moved to dismiss several of plaintiffs' claims [D.E. 24, 25]. On the same day, the Town filed an answer to plaintiffs' amended complaint and asserted counterclaims [D.E. 26]. On September 13, 2010, plaintiffs filed an answer to the Town's counterclaims [D.E. 30] and a response to the Town's motion to dismiss [D.E. 31], The Town replied on September 27, 2010 [D.E. 33]. On September 30, 2010, the parties stipulated to Wilson's dismissal [D.E. 34].

On October 29, 2010, plaintiffs moved to file a second amended complaint [D.E. 39]. On December 7, 2010, the court granted plaintiffs' motion to file a second amended complaint and denied as moot the Town's motion to dismiss the claims in the first amended complaint [D.E. 44]. On December 8, 2010, plaintiffs filed a second amended complaint asserting fourteen claims [D.E. 45]:

(1) Declaratory judgment that the Cottages are not in the “public trust area.” 2d Am. Compl. ¶¶ 104–10.

(2) Declaratory judgment that the enactment of Ordinance 16–31(6)(c) is beyond the Town's authority. Id. ¶¶ 111–18.

(3) Declaratory judgment that the Town's actions violated N.C. Gen.Stat. §§ 160A–441 to –540. Id. ¶¶ 119–26.

(4) Declaratory judgment that the Town lacks the authority to declare structures on the “dry sand beach” a nuisance. Id. ¶¶ 127–40.

(5) Declaratory judgment that Ordinance 16–31(6)(c) does not include the “dry sand beach.” Id. ¶¶ 141–49.

(6) Declaratory judgment that the Town's action in restricting access to the Cottages during the November Storm was unlawful. Id. ¶¶ 150–64.

(7) Declaratory judgment that the Town's actions deprived plaintiffs of their substantive due process rights as provided by the United States and North Carolina Constitutions. Id. ¶¶ 165–67.

(8) Declaratory judgment that the Town's actions deprived plaintiffs of their procedural due process rights as provided by the United States and North Carolina Constitutions. Id. ¶¶ 168–70.

(9) Declaratory judgment that the Town's actions deprived plaintiffs of the equal protection under the law as provided by the United States and North Carolina Constitutions. Id. ¶¶ 171–82.

(10) The Town acted under color of state law to deprive plaintiffs of their rights secured by the Fifth and Fourteenth Amendments of the United States Constitution, in violation of 42 U.S.C. § 1983. Id. ¶¶ 183–87.

(11) The Town's actions were a regulatory taking under the United States and North Carolina Constitutions. Id. ¶¶ 188–95.

(12) Initiation of an inverse condemnation proceeding against the Town. Id. ¶¶ 196–210.

(13) The Town was negligent in preventing Sansotta's team from accessing the...