Real Property – Constitutional – Due Process – Municipal – Nuisance Notice – Beachfront Cottage – Storm Damage – Public Trust

Town of Nags Head v. Toloczko (Lawyers Weekly No. 12-02-0371, 27 pp.) (James C. Dever III, Ch.J.) 2:11-cv-1; E.D.N.C.

Holding: The plaintiff-town no longer seeks removal of defendants’ beachfront cottage and has invited defendants to apply for a building permit to repair storm damage to their property. Nevertheless, the town maintains that the cottage sits in a “public trust area” and seeks civil penalties for defendants’ refusal to comply with the town’s declaration that the damaged cottage is a nuisance. Resolution of the town’s claim and defendants’ numerous counterclaims would require this federal court to delve into important and unresolved issues of N.C. law, including the definition of “public trust area.”

The court issues a stay as to several claims and dismisses other claims without prejudice.