(CN) — A Virginia couple that sued a North Carolina county over access to their vacation home lost their bid to get the case before the U.S. Supreme Court.
Joseph and Linda Blackburn lost access to their secondary home in Dare County, on North Carolina’s Outer Banks, at the height of the Covid-19 pandemic; starting on March 20, 2020, a public health order temporarily barred nonresident landowners from entering the county.
In their lawsuit, the Blackburns argued the order was tantamount to a governmental seizure of their personal property without compensation, setting up a debate over how Covid-related travel restrictions stack up against the Fifth Amendment.
But lower courts rejected the claim, and on Tuesday the Supreme Court declined to grant a writ of certiorari to hear the couple’s appeal.
The court offered no explanation for the decision.
Dare County announced the restrictions on March 16, effectively giving nonresident property owners four days to get to their properties if they wanted to quarantine in the county. Since the Blackburns did not arrive by March 20, they were unable to access their beach house until the order was partially lifted 45 days later.
Absent a physical intrusion on the Blackburns’ property, however, the restriction did not constitute a governmental taking of property, the Fourth Circuit Court of Appeals found. Plus, since the order was temporary, it could not possibly deprive the Blackburns of all the property’s economic value — a benchmark often used to measure encroachments on property rights.
Lawyers for the Blackburns pushed back in their Supreme Court brief, arguing Dare County had still encroached on the couple’s rights to enjoyment and use of the property. The right of enjoyment and exclusion are among the so-called “bundle of sticks” that typically define property ownership, the attorneys argued, and the ability to enjoy and use one’s property is just as central to the idea of property ownership as the potential economic benefit.
Therefore, the Blackburns said, to deprive a property owner of those rights amounts to a taking of the property.
“At a fundamental level, the ability to enter upon one’s property for personal use and the right to prohibit others from doing the same are the two basic tenants of property ownership,” the brief says. “To take one is to take the other, and both should be considered per se takings under the Fifth Amendment of the United States.”
Dare County attorneys meanwhile argued legal precedent is clear that a “taking” of property can't occur without physically occupying or appropriating property.
The county also highlighted in its brief that the limitation was temporary, and local governments routinely restrict access to areas in times of emergency. Even outside a global pandemic, natural disasters or violent incidents, like bomb threats or active shooter situations, often require road closures or other measures that may limit access to properties.
“Persons owning property in those affected areas have suffered no appropriation or invasion of their property, and such temporary restrictions have never been considered a per se taking,” the county’s lawyers argued.
The Fourth Circuit’s decision in this case has been upheld and cited in other cases, many involving conflicts over Covid-19 restrictions, county attorneys noted. In Golden Glow Tanning Salon v. City of Columbus, for instance, the Fifth Circuit ruled that the closing of a tanning salon due to Covid regulations didn’t constitute a seizure of property.
Courthouse News reached out to attorneys for both parties for comment but did not immediately receive responses.
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