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Beach towns spar with nonresident property owners at Fourth Circuit

A three-judge panel heard arguments over a North Carolina coastal county’s emergency declaration that temporarily blocked all nonresidents from entering the county at the height of the pandemic.

RICHMOND, Va. (CN) — A Virginia couple urged the Fourth Circuit on Tuesday to revive their claims that a county on North Carolina’s Outer Banks seized their property by barring them from visiting for 45 days during a Covid-19 travel ban. 

From ramshackle shacks to pastel castles on stilts, much of North Carolina’s coast is decorated with a colorful array of beach houses. Many of these salt-battered structures sit empty during offseasons, enduring tides and hurricanes as they wait for the next wave of vacationers to inhabit them. 

But, in 2020, a new kind of natural disaster arrived on The Tar Heel State’s shores. The Covid-19 pandemic shuttered businesses and sent parts of North Carolina into lockdown. 

More than just sandy feet and crab shacks, Dare County is home to a permanent population of about 37,000. For locals, the county stretching along nearly 110 miles of shoreline is a place to work, attend school and to pick up groceries from the Food Lion.

Aiming to slow the deadly virus’ spread in the area, the local government made a controversial decision. In March 2020, the Dare County Board of Commissioners released an emergency declaration that prohibited entry into the county by nonresident visitors. Violations of the order were punishable as a Class II misdemeanor. 

Linda and Joseph Blackburn, represented by attorneys with the firms Pritchett & Burch and Finn & Yeoman, filed a federal class action against the county in the Eastern District of North Carolina in May 2020 challenging the travel ban.

For the Blackburns, this is about more than a missed getaway. They argue the rule was tantamount to the county seizing their private property without offering compensation. 

U.S. District Judge Louise W. Flanagan granted the county’s motion to dismiss the claims in September 2020. Its six municipalities – the Towns of Duck, Southern Shores, Kitty Hawk, Kill Devil Hills, Nags Head and Manteo – were also named as defendants in the case. 

The ban allowed citizens of nearby Currituck, Tyrrell and Hyde counties to visit, but kept the Blackburns from their Hatteras Island vacation home for 45 days. They appealed Flanagan's order to the Richmond-based Fourth Circuit.

“Our clients were ousted from their property as were most of the nonresident property owners in that county,” said Lloyd C. Smith III, who represented the property owners during oral arguments on Tuesday.

U.S. Circuit Judge Julius Richardson, a Donald Trump appointee, swiftly pushed back against Smith’s claim. 

“As I read the order, it says that nonresident property owners may not enter Dare County but, if on March 19, if I was a property owner and I showed up to my house and I moved in on the 19, is there any suggestion that this ordinance would have kicked me out on March 21?” Richardson asked, referring to the date the emergency rule took effect.

Smith responded that it was his understanding that the nonresident property owner in Richardson’s hypothetical would be forced to leave the county. 

“I don’t see where I get that conclusion. The ordinance obviously does not say that. It says you may not enter Dare County, but that doesn't mean you must leave Dare County. Those are different phrases,” Richardson said. “I don't see anything in any of the regulations or the record other than your brief that suggests that you had to leave on March the 21 if you were already present.”

After Smith repeated his interpretation of the rule, U.S. Circuit Judge G. Steven Agee, a George W. Bush appointee, interjected to ask whether the ordinance prohibited the Blackburns from renting out their property to locals. 

The attorney said there was no rule against it, but contended that the main issue was the owners’ lack of access to their property. 

“I still possess land even though I’m not sitting on it at the very moment from a property perspective, right? So, they possessed the property,” Richardson said.

They still technically owned the property, Smith said, but argued that possession “is defined by the Supreme Court as actually being able to go upon it.”

“Here in Dare County the effect [of the rule] built a fence all the way around the Blackburns' property on all sides and they couldn't get to it. Now they might have been trapped in it if, as you said earlier, they wouldn't have to leave, but for the majority of the nonresident property owners, they were completely blocked off from their property,” Smith said. 

Brian Castro, who represented Dare County during arguments, said that “there was no ouster” of property owners.

Additionally, he said, the Blackburns admitted in their complaint that the county was responding to a public health crisis. 

“They admitted that the county had the authority to issue this order. The only question now is whether there was a taking, whether they were due compensation. And as has been noted here, they have not alleged any substantial diminution in property value whatsoever,” he said.

Castro added that asking the local government to compensate every nonresident homeowner would not be feasible. 

This is especially true, he said, in a part of the country that is familiar with mandatory evacuations during events such as hurricanes. 

“When you purchase a secondary vacation home, or you purchase a plot of land, there is no reasonable investment-backed expectation that you'd be able to use that property at your whim, particularly during a pandemic or when there's a contagious disease or other type of emergency within that zone,” he said, adding, “In times of emergency, the use cannot be unfettered.”

Richardson and Agee were joined on the panel by U.S. Circuit Judge Allison Jones Rushing, a Trump appointee.

The panel allowed both sides to speak longer than regularly permitted due to the importance of the case. It did not indicate when a ruling will be released.

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