Zito house

An empty lot sits now where the Michael and Cathy Zito's house use to be before a fire destroyed it. Now the state will not let them rebuild along this rapidly receding beach on what used to be Seagull Drive. 

NAGS HEAD, N.C.

A couple has filed suit against a North Carolina commission for the right to rebuild a beach house that burned down three years ago.

The state maintains that storm surge and beach erosion could destroy a new house just like they destroyed the entire row of homes across the street.

The case pits the rights of private property owners against state laws intended to protect coastal environments and reduce public costs and hazards related to rising seas and increasing beach erosion. It also raises the question of who pays for it when the ocean overwhelms property.

"The Zitos are left with the only vacant lot in a line of beach homes and can do little more than pitch a tent and camp on their property," according to a statement from Pacific Legal Foundation, which represents the couple.

Michael and Cathy Zito applied for permits to rebuild a home on Seagull Drive of about 1,800 square feet to replace the structure that caught fire in 2016 from an apparent power surge, according to the lawsuit. No one was in the home at the time.

The Town of Nags Head denied the application based on the state rule. The North Carolina Coastal Resources Commission denied the Zitos' request for a variance on the rule in December. Nags Head is not a defendant in the lawsuit.

The house sat in an area where the beach disappears at a rate of about 6 feet a year.

The state established setbacks years ago that prevent new construction in that part of Nags Head up to 180 feet from the line of vegetation closest to the surf. That line is typically at the seaward base of the dunes.

The Zito's lot sits on the inland side of Seagull Drive in Nags Head in a row of several other homes built before the state setbacks were in place. The neighborhood was platted in the 1970s. The rule applies along the entire coast. The higher the erosion rate, the further the setback reaches inland.

Jay Fohs bought a house in 2015 a few lots away from the Zitos. The ocean destroyed his driveway during a recent storm.

"I knew what I was getting into when I bought the property," Fohs said. "I just didn't think it would happen that quickly. The last three years there has been storm after storm after storm."

If the house were rebuilt on the same footprint as the old house it would be only 12 to 20 feet from the vegetation line, according to state commission's decision. The beach disappears so quickly there, the surf could end up damaging the new house to the point where it would become part of storm debris, the state said.

The property does not fit within grandfather rules either, the commission said.

But the Zitos should have a reasonable expectation to rebuild the same home on the same lot after it burned down, said David Breemer, an attorney with the Pacific Legal Foundation.

The litigation is not challenging the law, but the right to compensation, he said. The Zitos are asking for $700,000 plus legal fees.

"If you take property for public purposes you have to pay for it," Breemer said.

The couple bought the house in 2008 when setback rules were in place, but before some changes made the ocean buffers reach further inland, he said.

Seagull Drive was once a 500 foot long, two lane, paved street with high-end houses on each side. But storms repeatedly tore up the pavement or covered it in tons of sand. Nags Head spent thousands of dollars over a decade trying to maintain the road before closing it in 2016. Now, another gravel road passes on the backside of the homes.

All the homes except one on the ocean side of Seagull Drive were condemned and torn down following a lengthy court battle. Nags Head paid the owners a total of $1.5 million as part of the settlement. The lone house left is condemned without services, but the owner, Cherry Inc., will not permit the town to demolish the property without compensation, said town manager Cliff Ogburn.

The town has declined to pay. The property tax value is approximately $45,000,

A state spokesperson referred to the commission's decision for comments.

The Pacific Legal Foundation is a national, nonprofit organization that takes on cases it views as government overreach and abuse, according to the company website.

Jeff Hampton, 252-491-5272, jeff.hampton@pilotonline.com

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