The state of North Carolina is being sued for demanding that a house site be turned into open space.

When the home of Michael and Cathy Zito in Nags Head was destroyed by fire in 2016, the couple proposed simply reconstructing on the same footprint as the old home.

But the North Carolina Coastal Resources Commission refused them permission.

It’s because the setback from the ocean required for homes had expanded significantly since the Zitos built their home. So the couple was told they could own the lot but not rebuild their home on it.

And don’t worry, the state commission told them, it’s not an “unnecessary hardship.”

“This is unconstitutional,” charged Erin Wilcox of the Pacific Legal Foundation. “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.”

PLF is representing the couple in their lawsuit against state officials, which asks for $700,000 in damages.

The case in U.S. District Court in North Carolina challenges that state administrative decision, which, PLF said, “converts their lot into open space for the public benefit.”

“This amounts to a taking of property without just compensation, in violation of the federal and state constitutions,” PLF said in the complaint. “The Zitos seek damages under the United States Constitution and pursuant to ‘inverse condemnation” principles arising under North Carolina Constitution Article I, Section 19.”

Their plan was to rebuild on the same footprint.

“The rebuilt house wouldn’t be any larger or different than the one that had stood there since 1982. But significantly, since 1982, the legal setback line for coastal building had migrated landward. The Zitos’ lot, like the dozens of other developed lots lining the ocean on either side, is no longer 60 feet landward from the vegetation line. The Zitos asked for an exception so they could rebuild their home and put it in the same position it was previously – when no one had a problem with the location of their home. But the town refused to give its permission – even though the homes on either side are just as close to the water,” PLF said.

The filing explains that under state law, “property rights may be deemed to be substantially impaired when a government act substantially reduces the value of the subject property or substantially intrudes on other property rights.”

That’s what the rejection of the building permission has done, it explains.

“The commission’s variance denial results in an uncompensated taking of the Zitos’ property for public benefit.”

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