Roc Sansotta v. Town of Nags Head

Filed: August 1, 2013

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1538
(2:10-cv-00029-D)

TRUSTEE ROC F. SANSOTTA, Trustee and Executor for Estate of
Father Joseph Klaus; ROC F. SANSOTTA, Individually; RALPH S.
TOMITA; GLORIA H. TOMITA; CAROLE A. SHACKELFORD; JAMES
BREGMAN; LINDA ATSUS; GEORGE D. RUSIN,

Plaintiffs – Appellants,

v.

TOWN OF NAGS HEAD,

Defendant – Appellee,

and

TIMOTHY WILSON, Individually,

Defendant.

O R D E R

The Court amends its opinion filed July 25, 2013, as

follows:

On page 15, first full paragraph, line 1 -- the word

“as” is corrected to read “was.”

For the Court – By Direction

/s/ Patricia S. Connor
Clerk
 PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1538

TRUSTEE ROC F. SANSOTTA, Trustee and Executor for Estate of
Father Joseph Klaus; ROC F. SANSOTTA, Individually; RALPH S.
TOMITA; GLORIA H. TOMITA; CAROLE A. SHACKELFORD; JAMES
BREGMAN; LINDA ATSUS; GEORGE D. RUSIN,

Plaintiffs – Appellants,

v.

TOWN OF NAGS HEAD,

Defendant – Appellee,

and

TIMOTHY WILSON, Individually,

Defendant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, Chief District Judge. (2:10-cv-00029-D)

Argued: May 17, 2013 Decided: July 25, 2013

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Shedd wrote the opinion, in which Judge Davis
and Judge Diaz joined.
ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento,
California, for Appellants. Benjamin Marshall Gallop, HORNTHAL,
RILEY, ELLIS & MALAND, LLP, Nags Head, North Carolina; John D.
Leidy, HORNTHAL, RILEY, ELLIS & MALAND, LLP, Elizabeth City,
North Carolina, for Appellee. ON BRIEF: William J. Brian, Jr.,
Keith P. Anthony, Research Triangle Park, North Carolina, for
Appellants.

2
SHEDD, Circuit Judge:

The owners of six beachfront cottages sued the Town of Nags

Head, North Carolina, in state court after the Town declared

their cottages to be in violation of its nuisance ordinance.

After the Town removed the case to federal court, the district

court granted summary judgment to the Town on the owners’

procedural due process and equal protection claims and dismissed

the owners’ takings claim as unripe. The cottage owners now

appeal the district court’s decision. For the following

reasons, we affirm the district court’s grant of summary

judgment, reverse the district court’s decision to dismiss the

takings claim, and remand the case for further proceedings. 1

I.

A.

Nags Head (“the Town”) is located along the North Carolina

Outer Banks on the Atlantic Ocean. Roc Sansotta, Ralph and

Gloria Tomita, Carole Shackelford, James Bergman, Linda Atsus,

George Rusin, and the estate of Joseph Klaus own six cottages on

Seagull Drive in the Town. Roc Sansotta manages these cottages. 2

1
Although this case arises out of the same general facts as
Toloczko v. Town of Nags Head, -- F.3d -- (4th Cir. 2013), this
case involves different plaintiffs and different legal claims.
2
For simplicity, we refer to the Plaintiff-Appellants
collectively as “the Owners.”

3
 Like many parts of North Carolina’s Outer Banks, the Town’s

beaches have eroded in recent decades, some of them at a rate of

approximately two feet per year for over two decades. The

beaches near Seagull Drive have eroded much faster, at a rate of

approximately eight feet per year during these decades. As the

beaches have eroded, cottages that were once landward of the

first line of stable, natural vegetation are now seaward of this

line and on the beach itself, between the vegetation line and

the Atlantic Ocean. Since 2001, the six cottages involved in

this case have been seaward of the vegetation line. Being

located directly on the beach creates greater potential for

damage to the cottages during severe storms, so Sansotta has

taken measures to protect the cottages, including extending the

pilings supporting the cottages 25 feet into the ground and

putting extra sand around the cottages before storms.

On November 12, 2009, a major storm hit the Town, damaging

multiple beachfront cottages. During the storm, the ocean

breached Seagull Drive and washed out part of the road. Town

officials then set up a barricade and ordered Sansotta and the

contractors that he had hired to help protect the cottages to

stop working on the cottages and leave the beach. Sansotta and

his contractors ultimately complied with this order. Despite

Sansotta’s efforts to protect the six cottages that he managed,

4
the storm washed away much of the sand from around the cottages,

resulting in their septic tanks being exposed and other damage.

The Town’s Nuisance Ordinance provides three bases for

declaring a building to be a nuisance as a result of storm or

erosion damage. It states:

The existence of any of the following
conditions associated with storm-damaged or
erosion-damaged structures or their
resultant debris shall constitute a public
nuisance.

(a) Damaged structure in danger of
collapsing;

(b) Damaged structure or debris from
damaged structures where it can
reasonably be determined that
there is a likelihood of personal
or property injury;

(c) Any structure, regardless of
condition, or any debris from
damaged structure which is located
in whole or in part in a public
trust area or public land. 3

3
The public trust doctrine is the principle, rooted in
Roman civil law and English common law, that the public has the
right to access and use navigable waters and the state will
protect that right. In the United States, this doctrine is a
matter of state law. PPL Montana, LLC v. Montana, 132 S. Ct.
1215, 1234–35 (2012).

The Town and the Owners strongly disagree about the scope
of the public trust in North Carolina. They agree that “wet
beach”—that is, the beach seaward of the mean high water mark—
may not be privately owned but that “dry beach”—that is, the
beach between the mean high water mark and the first line of
stable vegetation—may be privately owned. See Appellant’s Br.
at 6; Appellee’s Br. at 20. They disagree, however, on whether
both of these parts of the beach are part of the public trust.
(Continued)
5
Nags Head, N.C., Code § 16-31(6) (emphasis added).

On November 30, 2009, Town Manager Cliff Ogburn notified

the Owners by letter that the Town was declaring the cottages to

be nuisances under subsections (b) and (c) of § 16-31(6). The

letter informed the Owners that if the nuisance was not abated

within 18 days, the Town would impose civil fines of $100 per

day per cottage. Based on the Town’s reliance on subsection

(c), the only way that the Owners could abate the nuisance was

to remove the cottages. Because demolishing the cottages was

the only way to abate the nuisance, the nuisance declaration

informed the Owners that no development permits would be issued

for the cottages. 4 The cottages remained standing in late

January 2010, at which time the Town began imposing the fines.

The Town views the public trust as encompassing the entire
beach, both the “wet beach” and the “dry beach.” See Appellee’s
Br. at 21. The Owners, on the other hand, contend that only the
“wet beach” is part of the public trust. See Appellant’s Br. at
8–9. Ultimately, despite the vigor with which the parties
dispute this issue, we need not address it because that issue is
irrelevant to the legal analysis required here.
4
Eventually, the Town changed its no-permit policy, and it
granted permits to other cottage owners. Sansotta claims he was
never told of this change in policy, and based on his belief
that the Town would not issue permits, he never applied to the
Town for a permit for any of the cottages he managed.

Relatedly, in July 2010, the Town amended its ordinances to
prohibit the issuance of permits for any structure that had been
declared a nuisance under § 16-31(6)(c). The July 2010
(Continued)
6
 In addition to these six cottages, the Town had also

declared 20 other cottages nuisances, four before the November

12 storm and 16 after. Although the owners of some cottages

demolished their cottages based on the declaration, other owners

have fought the declaration, resulting in litigation in both

state and federal court. See, e.g., Toloczko, -- F.3d –-; Town

of Nags Head v. Cherry, Inc., 723 S.E.2d 156 (N.C. Ct. App.

2012).

B.

In May 2010, approximately four months after the Town began

imposing these fines, the Owners filed suit against the Town in

state court. The Town timely removed the case to the federal

district court in the Eastern District of North Carolina. After

various motions in the district court, the Owners’ second

amended complaint asserted 14 claims against the Town, stating

claims under both federal and state law. 5 The Town asserted four

ordinance was the subject of separate litigation between the
Owners and the Town, but it is not relevant to the legal
analysis here. See Sansotta v. Town of Nags Head (“Sansotta
II”), 2:11-CV-3-D, 2012 WL 2919895 (E.D.N.C. July 17, 2012).
5
The Owners brought five federal claims: (1) a declaratory
judgment that the Town’s actions deprived the Owners of their
substantive due process rights; (2) a declaratory judgment that
the Town’s actions deprived the Owners of their procedural due
process rights; (3) a declaratory judgment that the Town’s
actions deprived the Owners of equal protection under the law;
(4) a § 1983 claim based on the constitutional violations; and
(Continued)
7
counterclaims, three of which sought an order of abatement, each

on a different legal basis, and one of which sought recovery of

the civil penalties that the Town had imposed.

While this litigation was ongoing, in early 2011 the Town

obtained permission from the U.S. Army Corps of Engineers to

undertake a massive $36 million beach renourishment project. By

August 2011, the part of the renourishment project near the six

cottages was completed, resulting in 200 feet of new beach in

front of the cottages. Based on the new beach, the Town

withdrew the nuisance declaration based on § 16-31(6)(c) in

September 2011; the Town claimed that the cottages were still in

the public trust but that they “no longer impermissibly or

unacceptably restrict or obstruct the use of and access to the

(5) a regulatory takings claim under the Fifth Amendment. They
also brought nine state-law claims: (1) a declaratory judgment
that cottages are not in public trust area; (2) a declaratory
judgment that § 16-31(6)(c) exceeds the Town’s authority; (3) a
declaratory judgment that the Town’s actions violated N.C. Gen.
Stat. §§ 160A-441 et seq.; (4) a declaratory judgment that the
Town lacks the authority to declare structures on the “dry
beach” to be nuisances; (5) a declaratory judgment that § 16-
31(6)(c) does not authorize the Town to declare structures on
the “dry beach” to be nuisances; (6) a declaratory judgment that
the Town’s restricting access to the cottages was unlawful; (7)
an inverse condemnation claim; (8) a negligence claim based on
the Town’s restricting access to the cottages on the day of the
storm and the Town’s failing to inspect the cottages before
issuing the nuisance declaration; and (9) a claim for
preliminary and permanent injunctions against the Town’s efforts
to demolish the cottages, assess civil penalties, or prevent the
Owners from protecting the cottages.

8
ocean beach.” J.A. 784. The Town also invited the Owners to

apply for permits to repair the cottages. The nuisance

declaration based on § 16-31(6)(b), however, remained in effect.

C.

Both parties moved for partial summary judgment. The

district court granted summary judgment to the Town on the

Owners’ procedural due process claim because the Town never

deprived the Owners of a property right, or alternatively,

because the Owners had a postdeprivation remedy through an

inverse condemnation proceeding. The court granted summary

judgment to the Town on the equal protection claim because the

Town’s decision to declare only some cottages on the beach to be

nuisances was rationally related to ensuring easy access for

emergency vehicles along the beach. 6 In addition to granting

summary judgment on these claims, the district court dismissed

the takings claim as unripe. Having disposed of the Owners’

federal claims, the district court remanded the Owners’ state-

law claims, as well as the Town’s four counterclaims, to state

court. See Sansotta v. Town of Nags Head (“Sansotta I”), 863 F.

Supp. 2d 495 (E.D.N.C. 2012). The Owners timely appealed, and

we have jurisdiction pursuant to 28 U.S.C. § 1291.

6
The district court also granted summary judgment to the
Town on the Owners’ substantive due process claim, a decision
the Owners have not appealed.

9
 II.

We first address the Owners’ claims under the Due Process

Clause and Equal Protection Clause.

A.

We review a grant of summary judgment de novo and apply the

same legal standards as the district court. Hardwick ex rel.

Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Under

Federal Rule of Civil Procedure 56, summary judgment should be

granted if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law,”

based on the “materials in the record.” Fed. R. Civ. P. 56. In

conducting our review, we must view all evidence in the light

most favorable to the nonmoving party. Hardwick ex rel.

Hardwick, 711 F.3d at 433. At this stage, “we do not ‘weigh the

evidence,’ but rather we only determine ‘whether there is a

genuine issue for trial.’” Id. (quoting Gray v. Spillman, 925

F.2d 90, 95 (4th Cir. 1991)); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

B.

The Owners contend that the Town violated their procedural

due process right by taking their money and property rights in

the cottages without providing any predeprivation process. We

disagree.

10
 The Due Process Clause of the Fourteenth Amendment

provides, “No State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Procedural due process simply ensures a fair

process before the government may deprive a person of life,

liberty, or property, Wolf v. Fauquier Cnty. Bd. of Supervisors,

555 F.3d 311, 323 (4th Cir. 2009), but “does not require certain

results,” Tri Cnty. Paving, Inc. v. Ashe Cnty., 281 F.3d 430,

436 (4th Cir. 2002).

To succeed on a procedural due process claim, a plaintiff

must satisfy three elements. First, he must demonstrate that he

had a constitutionally cognizable life, liberty, or property

interest. Iota Xi Chapter Of Sigma Chi Fraternity v. Patterson,

566 F.3d 138, 145 (4th Cir. 2009). Second, he must show that

the deprivation of that interest was caused by “some form of

state action.” Id. (quoting Stone v. Univ. of Md. Med. Sys.

Corp., 855 F.2d 167, 172 (4th Cir. 1988)). That deprivation can

be by physical appropriation, Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 435 (1982), or by a regulation that

deprives an owner of all economically valuable uses of the land,

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).

Third, he must prove “that the procedures employed were

constitutionally inadequate.” Patterson, 566 F.3d at 145.

11
 Here, the Owners’ claim fails because they cannot show that

the Town deprived them of any constitutionally cognizable

property right. They assert two property interests: (1) the

money that would be used to pay the fines imposed by the Town;

and (2) the right to use and enjoy the cottages as part of their

fee simple ownership. Although each of these interests is a

constitutionally protected property right and thus meets the

first element of the claim, the Owners fail to satisfy the

second element because the Town never deprived them of these

interests.

First, although money is clearly a cognizable property

interest, see, e.g., Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, 571–72 (1972) (including money in the list of

quintessential property rights protected by the Constitution),

the Town never deprived the Owners of any money because the

Owners never actually paid the fine. The Town’s imposition of

fines is not the equivalent of actually taking the Owners’

money. Cf. Sniadach v. Family Fin. Corp. of Bay View, 395 U.S.

337, 340–42 (1969) (holding that garnishment of wages is a

deprivation). 7 The Owners thus have suffered no deprivation, so

7
Because the Owners refuse to pay the fine, the Town is
unable to collect the fine—and thereby deprive the Owners of
their money—until the Town has prevailed in a civil action. See
N.C. Gen. Stat. § 160A-175(c); see also Nags Head, N.C., Code §
1-6(c)(6) (authorizing the Town to impose fines of no more than
(Continued)
12
their interest in their money cannot be the basis of a

successful procedural due process claim.

Second, the right to use and enjoy the cottages as part fee

simple ownership is also a cognizable property interest. See,

e.g., United States v. James Daniel Good Real Prop., 510 U.S.

43, 53–54 (1993) (observing that a person’s “right to maintain

control over his home, and to be free from governmental

interference, is a private interest of historic and continuing

importance”). The Owners appear to assert two theories of how

this property interest was taken. First, they argue that the

nuisance declaration clouded their title, thereby limiting their

ability to dispose of the property. 8 Second, they contend that

the Town’s actions deprived them of the ability to use and enjoy

the cottages, which they claim is an inherent part of fee simple

$500 per day for violations of Chapter 16, Article II of the
Town Code); id. § 1-6(f) (authorizing the Town to seek a court
order to enforce the Town’s ordinances).
8
Although we resolve this issue by focusing on the Town’s
authority to enforce its nuisances ordinances, we note that the
nuisance declaration did not cloud the Owners’ title. Compare
Connecticut v. Doehr, 501 U.S. 1, 12 (1991) (observing that
“attachments, liens, and similar encumbrances . . . are
sufficient [deprivations] to merit due process protection”) with
Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 15
(1984) (holding that a lis pendens does not result in a
deprivation).

13
ownership. 9 Although the Town limited their ability to use and

enjoy the cottages, that limitation was not a deprivation of any

property right.

The Town’s actions here were all legitimate government

actions intended simply to enforce its nuisance ordinances.

Such regulatory actions do not constitute a deprivation of

property because they represent limitations on the use of

property that “inhere in the title itself, in the restrictions

that background principles of the State’s law of property and

nuisance already place upon land ownership.” Lucas, 505 U.S.

at 1029. Abating public nuisances and protecting the public

trust have long been part of governmental authority in North

Carolina. See, e.g., Ward v. Willis, 51 N.C. 183, 185 (1858)

(discussing the public trust doctrine); Dunn v. Stone, 4 N.C.

241, 242 (1815) (recognizing that a private citizen cannot sue

to abate a public nuisance “unless he has received an

extraordinary and particular damage,” indicating that generally

9
The Owners appear to conflate fee simple ownership of the
cottages with the right to use the property in certain ways.
Although the right to use property is often considered part of
the bundle of property rights associated with fee simple, those
rights and fee simple ownership of property are not synonymous.

14
the government has the authority to act to abate such

nuisances). 10

By acting to abate what it believed was a nuisance, the

Town simply kept the Owners from using their property in a way

that was prohibited by law. Because the law prohibited such use

of property, the Owners had no right to use their property in

that way. The Town’s actions to abate a nuisance were

reasonable—if mistaken—uses of its police power that did nothing

to deprive the Owners of any property right, even if the

cottages were rendered valueless. See Keystone Bituminous Coal

Ass’n v. DeBenedictis, 480 U.S. 470, 492 n.22 (1987) (“Courts

have consistently held that a State need not provide

compensation when it diminishes or destroys the value of

property by stopping illegal activity or abating a public

nuisance.”).

Of course, as the North Carolina Court of Appeals has since

made clear, the Town does not have the authority to enforce the

public trust doctrine; that power that lies exclusively with the

state. See Cherry, Inc., 723 S.E.2d at 158–62. When the Town

10
Even if § 16-31(6)(c) was not adopted in its current form
when the cottages were built, the authority to abate nuisances
exists without a specific ordinance. See State v. Everhardt,
166 S.E. 738, 741-42 (N.C. 1932) (“A public nuisance exists
wherever acts or conditions are subversive of public order,
decency, or morals, or constitute an obstruction of public
rights. Such nuisances always arise out of unlawful acts.”).

15
issued the nuisance declaration, however, North Carolina courts

had not definitively addressed this issue. 11 We presume that the

Town officials acted in good faith when issuing the nuisance

declarations under the belief that they had this authority.

See, e.g., Linan-Faye Const. Co., Inc. v. Hous. Auth. of City of

Camden, 49 F.3d 915, 924 (3d Cir. 1995) (observing that a “court

is required to presume good faith on the part of public

officials”). For purposes of a due process claim, we consider

the Town’s actions based on the circumstances at the time the

government acted, not with the benefit of later-developed law,

because the purpose of the Due Process Clause is to ensure that

the government treats its citizens fairly, a determination which

is best made by focusing on what government officials knew and

believed at the time they acted. See Carey v. Piphus, 435 U.S.

247, 262 (1978). Thus, for purposes of the Owners’

constitutional claim, that the Town ultimately lacked the

11
When the Town acted, the North Carolina Court of Appeals
had decided Neuse River Found., Inc. v. Smithfield Foods, Inc.,
574 S.E.2d 48 (N.C. Ct. App. 2002), and Fabrikant v. Currituck
Cnty., 621 S.E.2d 19 (N.C. Ct. App. 2005), two decisions upon
which the court relied in Cherry, Inc. but that had not
conclusively resolved whether a political subdivision could
enforce the public trust.

16
authority to declare the cottages to be nuisances based on the

public trust doctrine is of no import. 12

Because the Town never deprived the Owners of any property

interest, their procedural due process right was not violated.

The district court therefore properly granted summary judgment

to the Town on this claim.

C.

We next address the Owners’ equal protection argument. The

Owners argue that the Town violated the Equal Protection Clause

when it declared their cottages nuisances because 14 other

cottages that were in the public trust area under the Town’s

definition were not declared nuisances. We disagree.

The Equal Protection Clause of the Fourteenth Amendment

provides, “No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. This clause “is essentially a direction that

all persons similarly situated should be treated alike.” City

of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). An equal protection claim involves two basic analytical

steps. First, a plaintiff must “demonstrate that he has been

treated differently from others with whom he is similarly

12
Whether this lack of authority could support any state-
law claim is an issue that we do not consider.

17
situated and that the unequal treatment was the result of

intentional or purposeful [government decision].” Morrison v.

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). 13 Second, if a

plaintiff has met this burden, then “the court proceeds to

determine whether the disparity in treatment can be justified

under the requisite level of scrutiny.” Morrison, 239 F.3d at

654. The level of scrutiny depends on the type of

classification.

We assume without deciding that the Owners can satisfy the

requirement that they are similarly situated to the owners of

the other 14 cottages. Despite this assumption, the Owners’

equal protection claim fails.

Because the Town’s decision to classify some of these

cottages as nuisances but not others does not involve a suspect

or quasi-suspect classification, 14 we must uphold the Town’s

decision unless the Owners can prove that the decision fails

rational basis review—that is, that no rational relationship

13
Here, the Owners assert that they are a “class of one,” a
position which we accept for purposes of our analysis. See
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Although other circuits have discussed the impact of Engquist
v. Oregon Department of Agriculture, 553 U.S. 591 (2008), on a
“class of one” equal protection claim, such discussion is not
necessary to resolving the claim before us.
14
Such classifications trigger higher scrutiny. See
Mitchell v. Comm’r of the Soc. Sec. Admin., 182 F.3d 272, 274
(4th Cir. 1999).

18
exists between the government action and a legitimate government

purpose. See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314–

15 (1993) (stating that the plaintiff bears the burden to show

that a government action lacks a rational basis); see, e.g.,

Vill. of Belle Terre v. Boraas, 416 U.S. 1, 7–8 (1974)

(reviewing a town ordinance regulating the number of unrelated

people who could live together under rational basis review).

Here, the Owners have failed to carry this burden because the

Town has a rational basis for treating them differently than the

owners of the other cottages.

Although all of the cottages—the Owners’ six cottages and

the other 14—may be in what the Town considers the public trust

area, the Owners’ cottages are substantially closer to the

Atlantic Ocean than the other cottages. See J.A. 385, 391–92

(providing aerial pictures of the beach showing the difference

in the location of the cottages). Ogburn, the Town manager,

stated in his affidavit that the Owners’ cottages “caused the

most severe and continuous” obstruction of the beach. J.A. 376.

This obstruction threatened public safety by hampering the

ability of emergency vehicles to travel along the beach. J.A.

377. The Owners’ contention that vehicles and individuals could

still get around their cottages is of no import. See J.A. 1324–

27 (Ogburn deposition admitting this fact). Whether vehicles

and individuals could possibly pass by the cottages is not the

19
appropriate question; rather, the appropriate question is

whether vehicles and individuals would have more difficulty in

passing by the cottages. Based on the difference in the

locations of the Owners’ cottages and the 14 other cottages, the

Town’s determination that the Owners’ cottages are more likely

to interfere with travel along the beach is reasonable. The

Town need not wait for these cottages to cause a disruption

before taking action.

Furthermore, the Owners’ contention that all cottages on

the beach burden the public’s access to use parts of the beach

under the Town’s theory of the public trust area is of no avail.

Even if the Town could declare all cottages on the beach

nuisances under its theory, the Town is not required to do so.

As long as a rational reason exists for the Town’s distinction

between cottages, the distinction does not violate any cottage

owner’s constitutional right. Thus, that the Town did not

declare some cottages further from the ocean to be nuisances

does not invalidate the Town’s decision to declare the Owners’

cottages nuisances. Notwithstanding the Owners’ contentions

about all parts of the beach being valuable, different parts of

the beach may present different issues with regard to public

safety. Hence, the difference in the locations of the cottages

on the beach is a legitimate basis for treating them

differently.

20
 Based on the need to ensure ease of emergency travel along

the beach, the Town had a rational basis for its decision to

declare the Owners’ cottages, but not the others, nuisances

under the Town’s ordinance. 15 The Owners’ equal protection right

therefore was not violated by the Town’s nuisance declaration,

and the district court correctly granted summary judgment to the

Town on this claim.

III.

We now turn to the Owners’ argument that the district court

erred in dismissing their takings claim 16 as unripe based on the

state-litigation requirement of Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City, 473 U.S.

172 (1985). Whether a takings claim is ripe under Williamson

County is a question of law, which we review de novo. See

Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). We agree

15
The Equal Protection Clause protects an individual from
being treated differently, not simply wrongly, by the
government. Thus, whether the Town was correct that it could
declare any cottages nuisances under § 16-31(6)(c) because they
were in the public trust is irrelevant here.
16
The Owners allege three theories of a Taking by the Town:
the Town’s (1) denying Sansotta the opportunity to protect the
cottages during the storm on November 12, 2009; (2) redefining
private property as public land; and (3) ordering removal of the
cottages as nuisances while denying permits to repair the damage
to the cottages.

21
with the Owners that the Town has waived the state-litigation

requirement by removing the case to federal court.

A.

The Fifth Amendment’s Takings Clause, applicable to the

states through the Fourteenth Amendment, Chicago, B. & Q.R. Co.

v. Chicago, 166 U.S. 226, 239 (1897), provides, “[N]or shall

private property be taken for public use, without just

compensation,” U.S. Const. amend. V. This clause “implicitly

recognizes a governmental power” to take property for public use

“while placing limits upon that power” by requiring that the

government pay just compensation for any private property that

it takes. Stop the Beach Renourishment, Inc. v. Fla. Dep’t of

Envtl. Prot., 130 S. Ct. 2592, 2614 (2010) (Kennedy, J.,

concurring in part and concurring in the judgment).

For a takings claim against a state or its political

subdivisions to be ripe in federal court, the plaintiff must

first have sought compensation “through the procedures the State

has provided for doing so.” Williamson Cnty. Reg’l Planning

Comm’n, 473 U.S. at 194. Because the Takings Clause simply

requires the payment of just compensation, not necessarily

payment before or simultaneous with the taking, a plaintiff must

first seek compensation from the state via the procedures that

the state has established before suing the state in federal

22
court. Id. at 195; see also Holliday Amusement Co. of

Charleston, Inc. v. South Carolina, 493 F.3d 404, 407 (4th Cir.

2007). Based on this requirement, a plaintiff cannot

simultaneously bring a claim for compensation under state law

and a claim under the Takings Clause in federal court; rather,

the plaintiff must first pursue his state-law claim for

compensation. See Holliday Amusement Co. of Charleston, Inc.,

493 F.3d at 407.

This prohibition does not exist in state court. In

contrast with a federal court, a state court may hear

“simultaneously a plaintiff’s request for compensation under

state law and the claim that, in the alternative, the denial of

compensation would violate the Fifth Amendment of the Federal

Constitution.” San Remo Hotel, L.P. v. City & Cnty. of San

Francisco, Cal., 545 U.S. 323, 346 (2005). Thus, under San Remo

Hotel, a plaintiff may bring a takings claim in state court

without having already been denied compensation by the state, if

he also brings his state-law claim for just compensation.

Here, the Owners did exactly what San Remo Hotel permits:

they filed both their takings claims and their inverse

condemnation claim, see N.C. Gen. Stat. § 40A-51, in state

23
court. 17 The Town then removed the case to federal court, as it

was permitted to do under 28 U.S.C. § 1441 because the complaint

raised a question of federal law. See 28 U.S.C. § 1331;

Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 152–53 (1908).

The Town then invoked the Williamson County state-litigation

requirement and asserted that the Owners’ taking claim was

unripe.

Although “[r]ipeness reflects constitutional considerations

that implicate ‘Article III limitations on judicial power,’ as

well as ‘prudential reasons for refusing to exercise

jurisdiction,’” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,

130 S. Ct. 1758, 1767 n.2 (2010) (quoting Reno v. Catholic

Social Servs., Inc., 509 U.S. 43, 57, n.18 (1993)), the

Williamson County state-litigation requirement involves only

prudential considerations, Suitum v. Tahoe Reg’l Planning

Agency, 520 U.S. 725, 734 (1997); see also Stop the Beach

Renourishment, Inc., 130 S. Ct. at 2610 (holding that Williamson

County is not jurisdictional). Because Williamson County is a

prudential rather than a jurisdictional rule, we may determine

that in some instances, the rule should not apply and we still

have the power to decide the case. See Washlefske v. Winston,

17
North Carolina courts will hear these claims
simultaneously. See, e.g., N.C. Dep’t of Transp. v. Cromartie,
716 S.E.2d 361 (N.C. Ct. App. 2011).

24
234 F.3d 179, 182 (4th Cir. 2000) (observing that prudential

ripeness focuses on whether “we should exercise federal

jurisdiction”). This case is such an instance. Allowing the

Town to invoke the Williamson County state-litigation

requirement after removing the case to federal court would fail

to fulfill the rationale for this prudential rule and would

create the possibility for judicially condoned manipulation of

litigation.

The limitation imposed by the state-litigation

requirement is grounded on the idea that “state courts

undoubtedly have more experience than federal courts do in

resolving the complex factual, technical, and legal questions

related to zoning and land-use regulations.” San Remo Hotel,

L.P., 545 U.S. at 347; see also Holliday Amusement Co. of

Charleston, Inc., 493 F.3d at 409. That state courts have this

advantage over federal courts in experience with these issues,

however, does not mean that federal courts are incapable of

handling them. Cf. San Remo Hotel, L.P., 545 U.S. at 350–51

(Rehnquist, C.J., concurring in the judgment) (observing that

federal courts can hear First Amendment challenges to municipal

land-use regulations despite state courts’ greater familiarity

with such ordinances and collecting cases). Indeed, we are

confident that federal judges, whenever they apply state law,

can apply it correctly. A defendant implicitly agrees with this

25
conclusion when he removes a case involving such a state or

municipal law to federal court. Thus, the primary reason for

the Williamson County state-litigation requirement no longer

applies when the defendant removes a case.

Moreover, refusing to apply the state-litigation

requirement in this instance ensures that a state or its

political subdivision cannot manipulate litigation to deny a

plaintiff a forum for his claim. The Supreme Court’s decision

in Lapides v. Board of Regents of the University System of

Georgia, 535 U.S. 613 (2002), is an apt analogy here. In that

case, a university professor brought an action pursuant to 42

U.S.C. § 1983, along with state-law claims, in state court after

university officials put allegations of sexual harassment in his

personnel file. Id. at 616. The defendants then removed the

case to federal court and asserted Eleventh Amendment immunity.

Id. The Court held that the state had waived its Eleventh

Amendment immunity on these facts. Id. The Court reasoned:

It would seem anomalous or inconsistent for
a State both (1) to invoke federal
jurisdiction, thereby contending that the
“Judicial power of the United States”
extends to the case at hand, and (2) to
claim Eleventh Amendment immunity, thereby
denying that the “Judicial power of the
United States” extends to the case at hand.
And a Constitution that permitted States to
follow their litigation interests by freely
asserting both claims in the same case could
generate seriously unfair results.

26
Id. at 619. Based on this ability for a state potentially to

manipulate litigation, the Court held that “removal is a form of

voluntary invocation of a federal court’s jurisdiction

sufficient to waive the State’s otherwise valid objection to

litigation of a matter . . . in a federal forum.” Id. at 624.

The Court was so intent on preventing any manipulation that it

created a bright-line rule: any voluntary removal waives

immunity. Id. at 621 (“A benign motive, however, cannot make

the critical difference for which Georgia hopes. Motives are

difficult to evaluate, while jurisdictional rules should be

clear. To adopt the State’s Eleventh Amendment position would

permit States to achieve unfair tactical advantages, if not in

this case, in others.” (internal citation omitted)).

Here, if we substitute “the Williamson County state-

litigation requirement” for “Eleventh Amendment immunity,” the

logic is precisely the same. Like Eleventh Amendment immunity,

a state or its political subdivision 18 is entitled to assert the

state-litigation requirement when a plaintiff files suit in

federal court. But permitting a state or its political

18
The Eleventh Amendment applies only to the states, Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280
(1977), but the Williamson County state-litigation requirement
applies both to states and their political subdivisions,
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194 (1985).

27
subdivision to assert this requirement after the state or its

political subdivision has removed the case to federal court

would allow the state or its political subdivision to do in the

context of the Takings Clause exactly what the Supreme Court has

declared to be improper in the context of the Eleventh

Amendment: invoke federal jurisdiction and then object to

federal jurisdiction. 19

Applying the reasoning of Lapides to the Takings Clause and

Williamson County is both logically and legally sound. First,

this reasoning does nothing to undermine the core rationale of

Williamson County, as a plaintiff cannot bring a takings claim

in federal court without having been denied just compensation by

the state; such a claim can come into federal court before the

state has denied compensation only when the state or its

political subdivision chooses to remove the case to federal

court. Second, it protects an innocent plaintiff who sought to

comply with Williamson County and San Remo Hotel but whose

efforts were thwarted by the state or political subdivision’s

decision to remove the case. Third, it prevents a state or its

19
The prudential nature of the Williamson County state-
litigation requirement as compared to the constitutional basis
of the Eleventh Amendment cannot logically or legally
distinguish this case from Lapides. In both instances, the
state could manipulate the litigation to deny a forum to the
plaintiff.

28
political subdivision from manipulating litigation by removing

to federal court claims properly filed in state court in

accordance with San Remo Hotel and then claiming that the

plaintiff cannot proceed on those claims, thereby denying a

plaintiff any forum for having his claim heard. Fourth, and

relatedly, it furthers our “strong preference for deciding cases

on the merits” by preventing any procedural gamesmanship.

Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997).

B.

None of the Town’s suggestions of what the Owners could

have done convinces us that we should apply the state-litigation

requirement here. First, the Town contends that the Owners

should have sought remand of the takings claim. Yet the Owners

could not have sought to have the district court remand this

claim. Under 28 U.S.C. § 1441, a defendant may remove a “civil

action,” 28 U.S.C. § 1441(a) (emphasis added); see also id. §

1446 (providing the procedure for removal), and such a removal

transfers the entire case to federal court, not simply

individual claims in that action. After the Town properly

removed this case and before the district court granted summary

judgment to the Town on the federal claims, the Owners had no

basis to seek to have that court remand any claims to the state

court. See 28 U.S.C. § 1447 (providing the procedure for after

a case is removed); id. § 1367(c) (providing the bases on which

29
a district court may decline to exercise supplemental

jurisdiction). 20 When the case was removed, federal jurisdiction

was proper, and the district court was obligated to exercise

that jurisdiction unless it had a legal basis, such as

abstention, see, e.g., Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976); Burford v. Sun

Oil Co., 319 U.S. 315 (1943), to refrain from exercising that

jurisdiction.

Second, the Town argues that the Owners should have

reserved their takings claim with an England reservation. An

England reservation permits a plaintiff who is forced to

litigate state-law issues in state court to reserve explicitly

his federal constitutional claims for a decision by a federal

court. See generally England v. La. State Bd. of Med.

Examiners, 375 U.S. 411 (1964); see also San Remo Hotel, L.P.,

545 U.S. at 339–40. We do not believe that the Owners should

20
The presence of other federal claims here easily
distinguishes this case from cases in which a plaintiff has
brought only a takings claim and has then sought remand based on
Williamson County. See, e.g., Bauknight v. Monroe Cnty., Fla.,
446 F.3d 1327 (11th Cir. 2006). In cases such as Bauknight, a
plaintiff could fairly argue that the district court had no
basis for jurisdiction because the case was not ripe. Here, by
contrast, the district court clearly had subject-matter
jurisdiction based on the substantive due process, procedural
due process, and equal protection claims. Thus, Sansotta had no
basis to ask the district court to remand the case after it had
been removed.

30
have been required to reserve their federal takings claim.

First, the record contains no indication that the Owners were

dissatisfied with having their takings claim heard in state

court; thus, they had no reason to reserve that claim for

adjudication by a federal court, and they should not have had to

presume that the Town, a political subdivision of North

Carolina, would remove the case from its own courts to federal

court. Second, assuming a plaintiff could make an England

reservation, see Front Royal & Warren Cnty. Indus. Park Corp. v.

Town of Front Royal, Va., 135 F.3d 275, 283 (4th Cir. 1998)

(citing Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299,

1303–07 (11th Cir. 1992)), requiring such a reservation here

fails to fulfill the purposes of reserving a claim. When the

Town removed the case, it brought the Owners’ takings claim into

federal court, thereby accomplishing the result of making an

England reservation. Nevertheless, the Town then argued that

the claim could not be decided at that time.

The Town’s position undercuts its own argument. Had the

Owners followed the Town’s suggestion and reserved their takings

claim, the result would have been the type of “piecemeal

litigation” that the Supreme Court has rejected. San Remo

Hotel, L.P., 545 U.S. at 346. On the other hand, because the

Owners did not reserve their claim, it allowed the Town to

manipulate the litigation and deny them a forum. Once the claim

31
is before a federal court, we see no reason to prevent the court

from exercising its jurisdiction over the claim. As we have

noted, the rationale for the state-litigation requirement

disappears when a defendant removes the case to federal court.

Furthermore, we are wary of the potential for manipulation and

the associated unnecessary costs of litigating in multiple

forums. Cf. Fed. R. Civ. P. 1 (“[The Federal Rules of Civil

Procedure] should be construed and administered to secure the

just, speedy, and inexpensive determination of every action and

proceeding.” (emphasis added)).

Third, the Town’s suggestion that the Owners did not

properly plead their takings and inverse condemnation claims in

the alternative is unavailing. The Federal Rules of Civil

Procedure remain committed to a notice-pleading standard that

was adopted when the Rules were first promulgated in 1938.

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); see also

Fed. R. Civ. P. 8(a)(2) (providing that a complaint must contain

“a short and plain statement of the claim showing that the

pleader is entitled to relief”). We see no reason why the

Owners needed to use any special phrasing in their complaint, as

this complaint gave the Town “fair notice” of the Owners’

claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

32
 Fourth, the Town maintains that the Owners could have asked

the district court to abstain despite the case being unripe.

But this position is untenable. “[R]ipeness is a question of

subject matter jurisdiction.” Reahard v. Lee Cnty., 978 F.2d

1212, 1213 (11th Cir. 1992). Because a district court can

abstain only when it has subject matter jurisdiction, a case

must be ripe before a district court may abstain. Cf. Colorado

River Water Conservation District, 424 U.S. at 817 (discussing

whether abstention was appropriate only after noting that

subject matter jurisdiction existed). Accordingly, the Town

cannot contend that the Owners’ taking claim is unripe and that

the Owners should have asked the district court to abstain, as

such legal positions are logically incompatible.

C.

Although the remand of claims to state court is generally

not an appealable final order under 28 U.S.C. §§ 1447(c) and

(d), see Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723, 723–24

(1977) (per curiam) (citing Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976)), we may review such a remand

when a district court declines to exercise supplemental

jurisdiction under 28 U.S.C. § 1367(c) because such a decision

is not a remand for lack of subject matter jurisdiction, see

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40

(2009) (“Upon dismissal of the federal claim, the District Court

33
retained its statutory supplemental jurisdiction over the state-

law claims. Its decision declining to exercise that statutory

authority was not based on a jurisdictional defect but on its

discretionary choice not to hear the claims despite its subject-

matter jurisdiction over them.”).

Given our holding that the Town waived the state-litigation

requirement by removing the case to federal court, we now

address the district court’s decision to remand the state-law

claims to state court. First, the district court focused on the

fact that no federal law claims remained, see Sansotta I, 863 F.

Supp. 2d at 514–15, but as we have made clear here, the takings

claim was ripe and does remain. Second, the district court

emphasized the important issues of state law raised by the

state-law claims. See id. at 515. However, based on the

decision of the North Carolina Court of Appeals in Cherry, Inc.,

further clarification from a state court may not be needed for

the district court to decide these claims. 21 See Cherry, Inc.,

21
In Town of Nags Head v. Toloczko, 863 F. Supp. 2d 516,
528 n.6 (E.D.N.C. 2012), the district court observed that the
North Carolina Supreme Court had not yet decided whether to
review the decision from the state court of appeals in Cherry,
Inc. The state supreme court has now denied discretionary
review of that decision. See Town of Nags Head v. Cherry, Inc.,
733 S.E.2d 85 (N.C. 2012). We see no reason not to defer to the
decision of the state court of appeals here. See United States
v. King, 673 F.3d 274, 279 (4th Cir. 2012) (“If the highest
court of the state has not decided an issue of state law, we
generally defer to the state’s intermediate appellate courts on
(Continued)
34
723 S.E.2d at 158–62. Third, the district court noted state

courts’ greater expertise with issues of state land-use law.

See Sansotta I, 863 F. Supp. 2d at 515. Nevertheless, as we

have expressed already, we have confidence in the district

court’s ability to apply this state law, and that by removing

the case, the Town implicitly shares our confidence in the

district court. In light of our holding today, the district

court must reconsider whether it should exercise supplemental

jurisdiction over the state-law claims. 22

* * *

Based on our conclusion that a state and its political

subdivisions waive the state-litigation requirement by removing

a case to federal court, the district court erred in dismissing

the Owners’ takings claim as unripe. Thus, we remand this claim

to the district court for further proceedings. Whether the

district court should decide the claim on the merits, abstain

from deciding the claim, or take another approach is a question

the issue.”). Thus, the impact of the decision of the North
Carolina Court of Appeals in Cherry, Inc. should be considered
in determining whether supplemental jurisdiction should be
exercised.
22
Although the Owners have not explicitly appealed the
district court’s decision to remand these claims, this issue is
closely related to the ripeness of the takings claim, and we
have elected to decide it now.

35
that we leave for the district court to address on remand. 23 For

purposes of this appeal, we simply hold that the district court

erred when it dismissed the Owners’ takings claim for lack of

ripeness after the Town removed the case to federal court.

IV.

We therefore affirm the district court’s grant of summary

judgment to the Town on the Owners’ procedural due process and

equal protection claims, reverse the district court’s dismissal

of the Owners’ takings claim for lack of ripeness, and remand

for further proceedings.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

23
In holding that the district court erred in dismissing
the Owners’ takings claim as unripe, we make no comment on the
merits of their claim.

36