Joseph Blackburn, Jr. v. Dare County, No. 20-2056 (4th Cir. 2023)
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Plaintiffs own a beach house in Dare County, North Carolina. In the early days of the COVID-19 pandemic, Dare County banned nonresident property owners from entering the county. As a result, Plaintiffs 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 Plaintiffs’ suit for failure to state a claim, Plaintiffs appealed.
The Fourth Circuit affirmed. The court held that the ban did not physically appropriate Plaintiffs’ 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. The court further explained that Dare County’s order is neither a physical appropriation, a use restriction that renders the property valueless, nor a taking under Penn Central. The effects of the order were temporary, Plaintiffs 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.
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