North Carolina Lawyers Weekly
Starting in late March 2020, Dare County, North Carolina, prohibited non-resident property owners from entering the county. Although the Virginia plaintiffs were unable to reside in their property for 45 days because of the lockdown, Dare County did not “take” their property within the meaning of the Takings Clause of the Fifth Amendment.
We affirm the district court’s dismissal of plaintiffs’ claim.
Dare County delayed the imposition of the lockdown for four days in order to give non-resident property owners a chance to come to Dare County if the wished to ride out the lockdown at their beach houses. Plaintiffs did not travel to their beach house by the lockdown date. Consequently, plaintiffs could not access their beach house until the lockdown order was partially lifted 45 days later.
The order did not physically appropriate anything from plaintiffs. The order did not authorize government officials or third parties to physically occupy or possess plaintiffs’ beach house.
It is true that a use restriction that deprives owners of all economically valuable use of their property is a per taking. However, Dare County’s order did not deprive plaintiffs’ property of all economic value. The order was intended to be operative only during the state of emergency, and it only lasted 45 days. Plaintiffs could have lived in their home so long as they arrived before the lockdown took effect. And even during the 45 days that the ban lasted, they could still have rented their property to someone within the county or certain adjoining counties. The lockdown order was not a per se taking.
Under Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), we apply a balancing test to determine whether a regulation amounted to a taking. This “essentially ad hoc, factual inquir[y],” asks us to examine (1) the “economic impact” of the use restriction, (2) how much the restriction interferes with “investment-backed expectations,” and (3) “the character of the governmental action.”
First, plaintiffs have pled no facts establishing any diminution in value, much less a substantial one. The economic impact factor weighs against plaintiffs.
Second, the order did not deny plaintiffs the use of their vacation home. It simply required them to be at their home by March 20, 2020, if they wanted to use it personally. And plaintiffs remained free to rent the house to those within the county, or to sell it. The order’s interference with plaintiffs’ investment-backed expectations was not as significant as plaintiffs suggest.
As to the character of the governmental action, the order is not functionally equivalent to a government appropriation of private property. Plaintiffs controlled their home during the order’s effective dates and could have personally used it had they arrived in Dare County by March 20, 2020. Plaintiffs were not dispossessed of their vacation house, and they were never forced to leave Dare County.
Furthermore, the order affected everyone in the community whose economic livelihood depended on non-residents, so the burden was widely distributed.
The order is not the functional equivalent of a physical invasion or ouster, and its impact was distributed broadly. The third Penn Central factor cuts in the county’s favor.
However we stack up the three factors, plaintiffs have failed to plausibly state a claim for relief under Penn Central.
Affirmed.
Blackburn v. Dare County (Lawyers Weekly No. 001-010-23, 16 pp.) (Julius Richardson, J.) No. 20-2056. Appealed from USDC at Elizabeth City, N.C. (Louise Flanagan, J.) Lloyd Smith, Wade Yeoman and Corey Ann Finn for appellants; Brian Florencio Castro and Christopher Geis for appellees. 4th Cir.
