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

By Mark Jurkowitz | Outer Banks Voice on January 31, 2023

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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

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