US Appeals Court rules Dare County COVID restrictions were constitutional

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  • The 4th U.S. Circuit Court of Appeals has affirmed a trial court ruling for Dare County in a dispute over COVID restrictions.
  • Appellate judges agreed that a 45-day shutdown for nonresident property owners did not amount to an unconstitutional taking of property.

The 4th U.S. Circuit Court of Appeals has upheld a lower-court ruling favoring Dare County in a dispute with beach property owners over COVID restrictions. The court handed down its unanimous opinion Wednesday in Blackburn v. Dare County.

Joseph and Linda Blackburn own a beach home. “In the early days of the COVID-19 pandemic, Dare County banned non-resident property owners from entering the county,” wrote Judge Julius Richardson. “As a result, the Blackburns could not reach their beach house for forty-five days. In response, they sued Dare County, alleging that their property was taken without compensation in violation of the Fifth Amendment.”

“After the district court found that the ban was not a Fifth Amendment taking and dismissed the Blackburns’ suit for failure to state a claim, the Blackburns appealed. But we affirm,” Richardson wrote. “The ban did not physically appropriate the Blackburns’ beach house. And though it restricted their ability to use the house, compensation is not required under the ad hoc balancing test that determines the constitutionality of most use restrictions.”

Dare County started implementing three phases of COVID-19 restrictions on March 16, 2020. “Phase three, which took effect four days after the restrictions were announced, prohibited non-resident property owners from entering the county,” Richardson wrote. “In effect, Dare County told non-resident property owners: ‘If you want to quarantine at your beach house, get there by March 20.’ This gave non-resident property owners four days to travel to the county.”

The Blackburns live in Richmond, Virginia. “For whatever reason, they did not travel to their beach house by March 20 when the non-resident-property-owners ban took effect,” according to the 4th Circuit opinion. “So the Blackburns could not then access their beach house until the order was partially lifted forty-five days later.”

“The Blackburns responded by suing Dare County for violating the Fifth Amendment’s Takings Clause. They sought damages, both for themselves and for a putative class of other non-resident property owners.”

The Takings Clause of the U.S. Constitution’s Fifth Amendment blocks government from taking private property for public use unless property owners receive “just compensation.”

“[E]ven accepting the Blackburns’ allegations at face value, Dare County’s non-resident property order did not physically appropriate anything from them,” Richardson wrote. “The order did not authorize government officials or third parties to physically occupy or possess the
Blackburns’ vacation home.”

“The Blackburns try to get around this problem by emphasizing that the non-resident property order effectively excludes them from their own property. This, they say, makes the order a physical appropriation, because the Supreme Court has repeatedly held that an appropriation occurs when the government eliminates a property owner’s right to exclude.”

“But temporarily excluding an owner from their own property differs from eliminating the owner’s right to exclude,” Richardson explained. “Indeed, the Supreme Court has stressed that, when asking if a physical appropriation has occurred, the ‘essential question’ is ‘whether the government has physically taken property for itself or someone else — by whatever means — or has instead restricted a property owner’s ability to use his own property.’”

Appellate judges rejected another piece of the Blackburns’ argument.

“Dare County’s order did not deprive the Blackburns’ property of all economic value,” Richardson wrote. “The restriction was enacted under the County’s State of Emergency declaration and so would only be operative while that state of emergency persisted. And it lasted only forty-five days. This ‘temporary prohibition’ could not have rendered the Blackburns’ property valueless.”

“The Blackburns have a preexisting property right in their vacation home. But even accepting their allegations, the non-resident property order did not deny the Blackburns the use of their vacation home,” according to the 4th Circuit opinion. “It simply required them to be at their home by March 20, 2020, if they wanted to use it personally. And the Blackburns remained free to rent the house to those within the county, or to sell it.”

“Dare County’s order is not the functional equivalent of a physical invasion or ouster. And its impact was distributed broadly,” not just limited to the Blackburns or other nonresident property owners, Richardson wrote.

“Dare County’s order restricted the Blackburns from using their property in many ways,” according to the opinion. “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. … 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.”

Judges Steven Agee and Allison Jones Rushing joined Richardson’s opinion.