U.S. Court of Appeals rules for Dare County in COVID closure case

By on January 31, 2023


A Jan. 25 decision by the U.S. Court of Appeals for the Fourth Circuit has ruled against plaintiffs who were seeking compensation from Dare County for denying non-resident property owners access to their homes during the 45-day COVID closure in 2020.

The Court of Appeals, by a unanimous 3-0 decision, affirmed a September 2020 dismissal of the case by U.S. District Court Judge Louise Flanagan who stated at the time that “Defendant County’s concededly legitimate exercise of its emergency management powers under North Carolina law to protect public health in the ‘unprecedented’ circumstances presented by the COVID-19 pandemic…does not plausibly amount to a regulatory taking of plaintiffs’ property.”

In a case that could have potentially have widespread implications, the Blackburns, the plaintiffs whose main residence is in Richmond, VA, argued that the county’s decision to restrict access to their home represented a violation of the Takings Clause of the Fifth Amendment.

The Court of Appeals ruled however, that “Dare County’s order restricted the Blackburns from using their property in many ways. But not every use restriction is a taking. And, properly viewed, Dare County’s order is neither a physical appropriation, a use restriction that renders the property valueless, nor a taking under Penn Central.”

The ruling added that “The effects of the order were temporary, the Blackburns had a chance to occupy their property before it took effect, and while the order was operative they could still exercise significant ownership rights over their property. The Blackburns’ complaint therefore fails to state a plausible claim for relief, and the district court’s decision is affirmed.”

In response to the decision, Dare County Town Manager Bobby Outten noted that the plaintiffs still have avenues of appeal and said, “It’s not final yet. We’re glad we won, but [we] don’t have a comment on the litigation while it’s ongoing.”

Plaintiffs’ attorney Lloyd Smith Jr. told the Voice that the Jan. 25 ruling might not be the end of the legal challenges in the case.

“We are exploring our options” and “seriously considering petitioning the Supreme Court,” he said. “That’s a complex process, but that’s probably what we are going to do.”

This Blackburn case is not the first legal battle over the county’s COVID closure. In 2020, plaintiffs sued, claiming the county violated their Constitutional rights by denying non-resident property owners access. In a settlement, the Dare Commissioners agreed that in future public health emergencies, the county would classify non-resident property owners the same way as residents. Without making an admission of fault or liability, the county also agreed to pay $16,500 in legal costs.

SEE ALSO: Two years later, an ongoing legal battle over Dare County’s COVID closure


  • Martha Fletcher

    I wonder how the plaintiffs feel after the county closes access to their properties due to a pending storm or after a storm when only essential personnel and permanent residents are allowed access for an unknown length of time? Do they plan to file a suit every time that mandatory evacuations are instituted or when they cannot gain access as non-resident property owners are tier 3 re-entry?

    Tuesday, Jan 31 @ 12:36 pm
  • Sandy

    Mr. and Mrs. Blackburn have lost in court twice. Lots of people had challenges during the COVID lockdowns. Hard to have much sympathy for them. Maybe the Blackburns needs to reevaluate the direction of their moral outrage. Mr. Blackburn didn’t win his case defending confederate monuments in Richmond either.

    Tuesday, Jan 31 @ 6:27 pm
  • Chris Smith

    GREED GREED GREED GREED!!!!!!!!!!! sick and tired of it. Cry me a river you jackasses. So many of you people think your holyer than thou. Yall are the problem on this beach. You don’t live here but,your gonna tell us how to live and what to do. We’ll you better think again.

    Tuesday, Jan 31 @ 6:33 pm
  • Jan Raynor

    Then we shouldn’t have to pay taxes. And I’m a Native NCarolian!!!! I even sent the commissioner to allow NC people to go to their homes first and no response!

    Tuesday, Jan 31 @ 9:50 pm
  • lippy

    The decision to close the bridge saved countless lives. How many visitors are aware of our limited healthcare resources? How many know we only have 18 beds in OBX Hospital? I remember reading the hospital only had 2 ventilators at that time.

    I also recall when the bridge was opened and the NRPOs came down, our COVID numbers went up and they hoarded all the paper goods in the grocery stores. Hard to believe this behavior didn’t endear them to us.

    I don’t agree with some of Bobby Outten’s decisions but closing the bridge was a tough decision and the right decision.

    Wednesday, Feb 1 @ 10:04 am
  • Lemonshirt

    If our collective response to the 2020 Covid epidemic is a barometer of our society’s civic call to duty in a time of crisis, then we are in trouble.

    Wednesday, Feb 1 @ 1:30 pm
  • Sandflea

    The Blackburns sound like pretty nasty people. They got theirs and eff everybody else. They act as if the hub of the world goes thru a certain part of anatomy of theirs. It’s people like them that has ruined this place and many good folks have left and are leaving the area because of people like them. I hope the appeal it again and lose bigly; and costs them a fortune in legal fees. Money seems to be the only thing that gets thru to these types of people.

    Thursday, Feb 2 @ 8:47 am