Blackburn v. Dare County

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN DIVISION

NO. 2:20-CV-27-FL

JOSEPH E. BLACKBURN, JR., and wife, )

LINDA C. BLACKBURN, and all )

similarly situated individuals, )

)

Plaintiffs, )

)

v. )

) ORDER

DARE COUNTY, the TOWNS OF )

DUCK, SOUTHERN SHORES, KITTY )

HAWK, KILL DEVIL HILLS, NAGS )

HEAD, and MANTEO, )

)

Defendants. )

This matter comes before the court on defendant Dare County’s (“County”) motion to

dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. (DE 23). This matter also comes before the court on

defendant Towns of Nags Head, Duck, Kill Devil Hills, Manteo, Kitty Hawk, and Southern

Shore’s (collectively, “Towns”) motion to dismiss for lack of subject matter jurisdiction pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure.1 (DE 25). The issues raised have been

fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendants’

motions are granted.

1 Defendant Towns also join in defendant County’s motion to dismiss for failure to state a claim, adopting

defendant County’s arguments as their own.

STATEMENT OF THE CASE

Pursuant to 42 U.S.C. § 1983, plaintiffs commenced the instant action on May 15, 2020,

asserting defendants unlawfully took their private property without just compensation by banning

them from entering the county during a state of emergency, in violation of the Fifth and Fourteenth

Amendments to the United States Constitution. Plaintiffs assert their claims individually and on

behalf of similarly situated persons. On June 24, 2020, defendant County filed the instant motion

to dismiss, asserting no compensable taking occurred. Defendant Towns filed their motion to

dismiss approximately one week later, asserting plaintiffs lack standing to sue them for a taking

under the Fifth and Fourteenth Amendments.

STATEMENT OF FACTS

The facts alleged in the complaint may be summarized as follows. Plaintiffs are residents

of Richmond, Virginia. (Compl. ¶ 3). Defendants are various bodies politic, created and existing

under the laws of the State of North Carolina. (Id. ¶ 5). On July 22, 2013, plaintiffs acquired in

fee simple a tract or parcel of land in the City of Frisco, Atlantic Township, Dare County, North

Carolina, with a vacation home situated thereon, by deed recorded in Book 1936, Page 71 in the

Office of the Register of Deeds of Dare County.2 (Id. ¶¶ 4, 16). On March 16, 2020, defendant

County declared a state of emergency due to the unprecedented public health crisis posed by

COVID-19, which plaintiffs allege it has a right to do. (Id. ¶ 9; Emergency Decl. (DE 1-1) at 1–

2). The next day, defendant County issued a declaration prohibiting mass gatherings and

prohibiting nonresident visitors from entering the county. (Compl. ¶ 10; Nonresident Visitor

Travel Restriction (DE 1-2) at 1–2).

2 The court takes judicial notice of plaintiffs’ recorded deed, which shows they hold title to their property in

fee simple. See Fed. R. Evid. 201; Pratt v. Kelly, 585 F.2d 692, 696 & n.5 (4th Cir. 1978).

Effective March 20, 2020, defendant County imposed an additional restriction prohibiting

nonresident property owners, such as plaintiffs, from entering the county. (Compl. ¶ 11;

Nonresident Property Owner Travel Restriction (DE 1-3) at 1–2). Workers with an entry permit,

county residents, and citizens of immediately adjoining counties were not prohibited from entering

the county.3 (Id. ¶¶ 12–13). The travel restriction prohibiting entry of nonresident property owners

was partially lifted on Monday, May 4, 2020, again partially lifted on May 6, 2020, and then

completely lifted on May 8, 2020. (Id. ¶ 14).

COURT’S DISCUSSION

A. Defendant Towns’ Motion to Dismiss (DE 25)

1. Standard of Review

A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction.

Such motion may either 1) assert the complaint fails to state facts upon which subject matter

jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart

from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant

raises a “facial challenge[ ] to standing that do[es] not dispute the jurisdictional facts alleged in the

complaint,” the court accepts “the facts of the complaint as true as [the court] would in context of

a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018). When a

defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the

pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the

pleadings without converting the proceeding to one for summary judgment.” Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The

3 The court takes judicial notice that Currituck, Tyrrell, and Hyde counties immediately adjoin Dare county.

See United States v. Lavender, 602 F.2d 639, 641 (4th Cir. 1979); Gov’t of Canal Zone v. Burjan, 596 F.2d 690, 693–

94 (5th Cir. 1979).

nonmoving party in such case “must set forth specific facts beyond the pleadings to show that a

genuine issue of material fact exists.” Id.

2. Analysis

The United States Constitution extends the subject matter jurisdiction of the federal

judiciary to “cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1. “Standing to sue is a doctrine

rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547 (2016). “To establish Article III standing, the plaintiff seeking compensatory relief

must have ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” Town of

Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Spokeo, 136 S. Ct. at

1547)); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). “Absent such a showing,

exercise of [] power by a federal court would be gratuitous and thus inconsistent with the Art. III

limitation.” Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976).

“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form

of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (internal

quotations and citations omitted). “That a suit may be a class action . . . adds nothing to the

question of standing, for even named plaintiffs who represent a class ‘must allege and show that

they personally have been injured, not that injury has been suffered by other, unidentified members

of the class to which they belong and which they purport to represent.’” Lewis v. Casey, 518 U.S.

343, 357 (1996) (internal citations omitted).

The challenged regulation, which prohibited travel to the county by nonresident property

owners, was promulgated by defendant County. (Compl. ¶ 11; Nonresident Property Owner

Travel Restriction (DE 1-3) at 1–2); see N.C. Gen. Stat. § 166A-19.31(a) (allowing the chair of

the county board of commissioners to promulgate prohibitions and restrictions on behalf of the

county). Although the court reasonably can infer from the allegations that defendant Towns joined

in and consented to the nonresident property owner travel restriction, (see Emergency Decl. (DE

1-1) at 1 (evidencing defendant Towns’ consent to the emergency declaration and restrictions

therein); Nonresident Property Owner Travel Restriction (DE 1-3) at 1 (imposing additional

restrictions pursuant to the emergency declaration)), plaintiffs allege that they are “non-resident

property owners of a tract or parcel of land in the City of Frisco, Atlantic Township, Dare County,

North Carolina.” (Compl. ¶ 16). As plaintiffs’ loss of use of their property pursuant to defendant

County’s regulation is not “fairly traceable” to defendant Towns’ consent to apply the county’s

emergency declaration and accompanying restrictions to their respective jurisdictions, see N.C.

Gen. Stat. § 166A-19.22(b), plaintiffs lack standing to sue defendant Towns. See Spokeo, 136 S.

Ct. at 1547.

Plaintiffs argue they have standing to assert their class claims against defendant Towns

because other, unspecified putative class members’ claims against defendant Towns would form a

“juridical link” with defendant County. (Pl. Resp. (DE 32) at 6). The “juridical link” doctrine,

which applies to Rule 23 of the Federal Rules of Civil Procedure, “assume[s] the presence of

standing.” La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 464 (9th Cir. 1973). The doctrine

does not cure plaintiffs’ lack of standing under Article III of the Constitution. See, e.g., Wong v.

Wells Fargo Bank N.A., 789 F.3d 889, 896 (8th Cir. 2015); Mahon v. Ticor Title Ins. Co., 683

F.3d 59, 62–66 (2d Cir. 2012); Thompson v. Bd. of Educ. of Romeo Cmty. Sch., 709 F.2d 1200,

1204–06 (6th Cir. 1983). Accordingly, defendant Towns’ motion to dismiss is granted for lack of

subject matter jurisdiction.

B. Defendant County’s Motion to Dismiss (DE 23)

1. Standard of Review

“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations

omitted). The court “may properly take judicial notice of matters of public record.” Sec’y of State

For Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (internal citations

omitted). Additionally, the court “may consider documents attached to the complaint, as well as

those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.”

Id. (internal citations omitted).

2. Analysis

“To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured

by the Constitution and laws of the United States, and [2] must show that the alleged deprivation

was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). The Fifth Amendment to the United States Constitution provides in pertinent part that

“private property” shall not “be taken for public use, without just compensation.” U.S. Const.

amend. V, cl. 4. This constitutional guarantee is “incorporated against the States by the Fourteenth

Amendment.” Nollan v. California Coastal Comm’n, 483 U.S. 825, 827 (1987); see U.S. Const.

amend. XIV (guaranteeing no state may “deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”).

“The Fifth Amendment’s guarantee that private property shall not be taken for a public use without

just compensation was designed to bar Government from forcing some people alone to bear public

burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong

v. United States, 364 U.S. 40, 49 (1960). “The paradigmatic taking requiring just compensation

is a direct government appropriation or physical invasion of private property.” Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 537 (2005). In addition, the United States Supreme Court has

“recognized that government regulation of private property may, in some instances, be so onerous

that its effect is tantamount to a direct appropriation or ouster—and that such ‘regulatory takings’

may be compensable under the Fifth Amendment.” Id.

a. Physical Taking

“When the government physically takes possession of an interest in property for some

public purpose, it has a categorical duty to compensate the former owner . . . , regardless of whether

the interest that is taken constitutes an entire parcel or merely a part thereof.” Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002) (internal citation

omitted). In Horne v. Dep’t of Agric., the Court found the government’s imposition of a reserve

requirement for a farmer’s raisin crop was a direct appropriation that involved “actual taking of

possession and control” of private property, thereby requiring compensation. 576 U.S. 350, 361–

62 (2015). Similarly, in Kaiser Aetna v. United States, the Court found that “the imposition of the

navigational servitude” in a pond “result[ed] in an actual physical invasion of [a] privately owned

marina.” 444 U.S. 164, 180 (1979). Examples of physical takings abound from World War II,

when the government took possession of private resources in support of the war effort. See, e.g.,

United States v. Pewee Coal Co., 341 U.S. 114, 115–17 (1951); Kimball Laundry Co. v. United

States, 338 U.S. 1, 3, 14 (1949); United States v. Causby, 328 U.S. 256, 261–67 (1946); United

States v. Gen. Motors Corp., 323 U.S. 373, 375 (1945).

Plaintiffs allege that defendant County prohibited them and other nonresident property

owners from entering the county from March 20, 2020, to May 8, 2020. (Compl. ¶¶ 10–11, 14).

Taking the facts as true and drawing all reasonable inferences in plaintiffs’ favor, such a

prohibition is not a physical taking. Unlike the precedents discussed by the court above, the

challenged restriction did not transfer possession or control of plaintiffs’ private property to

defendant County for public use. Rather, the subjects of the challenged regulation are plaintiffs;

the prohibition being entry into Dare County. (See Nonresident Property Owner Travel Restriction

(DE 1-3) at 1–2). The regulation does not compel transfer of any easement, servitude, or

possession or control of plaintiffs’ property to the government. See N. Transp. Co. v. City of

Chicago, 99 U.S. 635, 639, 642 (1878) abrogated on other grounds by Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 414–15 (1922) (finding no physical taking where “[n]o entry was made

upon the plaintiffs’ lot. All that was done was to render for a time its use more inconvenient.”).

Thus, any incidental adverse effects to exercise of plaintiffs’ private property rights are not legally

cognizable as a physical taking.

Plaintiffs argue that, because they allege a “temporary complete taking,” defendant

County’s regulation is a physical taking. (Pl. Resp. (DE 31) at 8–12). Plaintiffs rely upon the

foregoing physical takings cases cited by the court to no avail. The law simply does not support

plaintiffs’ novel interpretation of possession or control by the government.

Plaintiffs also cite several other Supreme Court precedents equally unavailing to their case.

Plaintiffs argue that “‘temporary’ takings which . . . deny a landowner all use of his property, are

not different in kind from permanent takings, for which the Constitution clearly requires

compensation.” First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., Cal.,

482 U.S. 304, 318 (1987). Plaintiffs’ reliance on First English is unpersuasive because it begs the

“logically prior question whether the temporary regulation at issue had in fact constituted a taking.”

Tahoe-Sierra, 535 U.S. at 328 (quoting First English, 482 U.S. at 321 (“We merely hold that where

the government’s activities have already worked a taking of all use of property, no subsequent

action by the government can relieve it of the duty to provide compensation for the period during

which the taking was effective.”)); see also Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162,

2171–72, 2179 (2019) (discussing First English and overruling the requirement that a state court

deny plaintiff’s claim for just compensation under state law prior to asserting a claim under the

Takings Clause in federal court). Finally, plaintiffs cite Arkansas Game & Fish Comm’n for the

proposition that “if a government action would qualify as a taking when permanently continued,

temporary actions of the same character would also qualify as a taking.” (Pl. Resp. (DE 31) at 11).

Plaintiffs’ reliance is misplaced. The Court in Arkansas Game & Fish Comm’n held “simply and

only, that government-induced flooding temporary in duration gains no automatic exemption from

Takings Clause inspection.” 568 U.S. at 38 (emphasis added). Plaintiffs fail to allege a physical

taking in the instant case.

b. Regulatory Taking

“[W]hile property may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking.” Mahon, 260 U.S. at 415. The United States Supreme Court recognizes

regulatory takings in three situations: 1) a permanent physical occupation authorized by

government, 2) a regulation permanently required a property owner to sacrifice all economically

beneficial uses of his or her land, 3) the facts and circumstances of the particular case show a

taking has occurred. Arkansas Game & Fish Comm’n, 568 U.S. at 31–32; Lingle, 544 U.S. at

538–39.

For the same reasons that plaintiffs fail to allege a physical taking by defendant County,

they also fail to allege a permanent physical occupation of their property sanctioned by defendant

County. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–36 & n.12

(1982). Likewise, the 45-day restriction on plaintiffs’ access to Dare County is not a total

regulatory taking denying plaintiffs all economically beneficial use in their property. See Tahoe-

Sierra, 535 U.S. at 331–32 (“[A] fee simple estate cannot be rendered valueless by a temporary

prohibition on economic use, because the property will recover value as soon as the prohibition is

lifted.”); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019–20 (1992) (emphasis in original)

(finding a categorical taking where petitioner’s two beachfront lots were rendered valueless by

respondent’s enforcement of the coastal-zone construction ban); (see also Pl. Resp. (DE 31) at 14

(conceding Lucas does not apply in the instant case)). Where the instant case does not involve a

per se regulatory taking, the court must determine whether the facts alleged plausibly state a claim

for a regulatory taking.

“In engaging in these essentially ad hoc, factual inquiries” into whether regulation of

private property interests should be considered a taking, “the Court’s decisions have identified

several factors that have particular significance.” Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104, 124 (1978). These factors include “(1) the economic impact of the regulation on

the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed

expectations; and (3) the character of the governmental action.” Murr v. Wisconsin, 137 S. Ct.

1933, 1943 (2017) (citations omitted). “In deciding whether a particular governmental action has

effected a taking, this Court focuses . . . both on the character of the action and on the nature and

extent of the interference with rights in the parcel as a whole.” Penn Cent., 438 U.S. at 130–31;

see Andrus v. Allard, 444 U.S. 51, 65 (1979) (“[T]he denial of one traditional property right does

not always amount to a taking. At least where an owner possesses a full ‘bundle’ of property rights,

the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed

in its entirety.”).

As to the first Penn Central factor, plaintiffs allege that they “lost the fair market rental

value and the value of use of said property by governmental regulations for 45 days.” (Compl. ¶

19). The complaint alleges no facts that sustain a reasonable inference as to the magnitude of the

loss in this case, such as the frequency with which plaintiffs’ previously have rented or used their

property or the value of such loss to plaintiffs. See Pulte Home Corp. v. Montgomery Cty.,

Maryland, 909 F.3d 685, 696 (4th Cir. 2018) (evaluating the extent of plaintiff’s loss based on the

amount of land it could still develop). Moreover, “mere diminution in the value of property,

however serious, is insufficient to demonstrate a taking.” Concrete Pipe & Prod. of California,

Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S. 602, 645 (1993); see Hadacheck v.

Sebastian, 239 U.S. 394, 405, 409–10 (1915). However, plaintiffs do allege some unspecified

amount of economic loss, which under the first Penn Central factor would provide some support

of plaintiffs’ takings claim.

Turning to the second Penn Central factor, “courts have traditionally looked to the existing

use of property as a basis for determining the extent of interference with the owner’s ‘primary

expectation concerning the use of the parcel.’” Esposito v. S.C. Coastal Council, 939 F.2d 165,

170 (4th Cir. 1991) (quoting Penn Cent., 438 U.S. at 136). In Esposito, the court explained that

plaintiffs had not suffered a taking where “[t]hey continued to retain the fundamental incidents of

ownership, including the right to possess the property, exclude others from it, alienate the property

and continue to use it for residential and recreational purposes.” Id. at 170; cf. Quinn v. Bd. of

Cty. Commissioners for Queen Anne’s Cty., Maryland, 862 F.3d 433, 442 (4th Cir. 2017) (finding

no reasonable investment backed expectation of development based on speculative proposition

that plaintiff was entitled to sewer services). Defendant County’s regulation did temporarily

interfere with plaintiffs’ right to personally travel to their vacation property, diminishing plaintiffs’

right to use the property.4 Therefore, the second Penn Central factor supports plaintiffs’ takings

claim.

On the other hand, the third part of the Penn Central test decisively weighs against

plaintiffs. “A ‘taking’ may more readily be found when the interference with property can be

characterized as a physical invasion by government . . . than when interference arises from some

public program adjusting the benefits and burdens of economic life to promote the common good.”

Id. at 124; see Mahon, 260 U.S. at 415 (explaining that “an average reciprocity of advantage”

indicates a regulation is not a taking). In making an assessment of whether a regulation is

“functionally comparable to government appropriation or invasion of private property[,]” the court

considers “the magnitude or character of the burden a particular regulation imposes upon private

property rights” and “how any regulatory burden is distributed among property owners.” Lingle,

544 U.S. at 542 (emphasis in original). “[R]easonable land-use regulations do not work a taking.”5

Murr, 137 S. Ct. at 1947.

4 Nowhere did the travel restriction in the instant case prohibit plaintiffs from using someone as an agent to

exercise many of their rights of ownership during the 45-day period in which the regulation was in effect. Indeed, the

regulation on its face broadly leaves plaintiffs’ authority to manage their property through local persons (e.g. cleaning

services, construction workers, and real estate agents) intact.

5 In this case, the government is not directly regulating land use. Rather, it is regulating the travel of

nonresident property owners, which incidentally burdens their use of their property.

Courts have long recognized that regulations that protect public health or prevent the spread

of disease are not of such a character as to work a taking. In Miller v. Schoene, the Supreme Court

considered whether diminution of value caused by state mandated destruction of property owners’

red cedar trees to prevent the spread of cedar rust, a fungal disease, to neighboring apple orchards

must be compensated as a taking. 276 U.S. 272, 277–79 (1928); see Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470, 490 (1987) (construing the due process clause challenge under the

Fourteenth Amendment in Miller as a Takings Clause claim). The Court declined to order

plaintiffs be compensated, concluding that “where the public interest is involved preferment of

that interest over the property interest of the individual, to the extent even of its destruction, is one

of the distinguishing characteristics of every exercise of the police power which affects property.”

Miller, 276 U.S. at 279–80. In Rose Acre Farms, Inc. v. United States, the United States Court of

Appeals for the Federal Circuit considered whether regulations restricting the interstate sale and

transportation of eggs and poultry from flocks contaminated by salmonella was a compensable

taking. 559 F.3d 1260, 1263 (Fed. Cir. 2009). There, the court concluded that “the character of

the government’s act, protecting the public health by identifying diseased eggs and forcing their

owner to remove them from the table market, weighs strongly against finding a taking here.” Id.

at 1281.

The instant case is more compelling than Miller and Rose Acre as to the character of the

disputed government action. As plaintiffs allege, the COVID-19 pandemic is an “unprecedented”

public health crisis. (Compl. ¶ 9). Both the United States and the State of North Carolina declared

states of emergency several days prior to defendant County enacting the disputed travel restriction.

Pres. Proc. No. 9994, 85 Fed. Reg. 15337, 15337 (Mar. 13, 2020); Exec. Or. 116, 34 N.C. Reg.

1744, 1744–45 (Apr. 1, 2020); (Compl. ¶¶ 9–11). On March 27, 2020, citing the “occurrence of

widespread community transmission of the virus,” the governor of North Carolina issued a broad

range of public health directives, including an order that individuals stay at home and a restriction

on mass gatherings. Exec. Or. 121, 34 N.C. Reg. 1903, 1903–06, 1911 (May 1, 2020). The

Executive Order explicitly recognized that counties and cities may need to adopt local prohibitions

and restrictions further restricting the activity of people and businesses. Id. at 1911–12.

Defendant County’s state of emergency and ensuing restrictions were of the ilk of

government health regulations seeking to “slow the spread of COVID-19” by directing people to

stay at home and not travel to the county. (See Nonresident Visitor Travel Restriction (DE 1-2) at

1–2; Nonresident Property Owner Travel Restriction (DE 1-3) at 1–2). As plaintiffs’ class

allegations indicate, the burden of this regulation was distributed broadly among those property

owners who reside in places other than the county. (See Compl. ¶ 20 (alleging that nonresident

property owners are so numerous as to form a class); see Nonresident Property Owner Travel

Restriction (DE 1-3) at 1–2). The burden of the county’s stay at home order also was borne by

nonresident visitors. (Nonresident Visitor Travel Restriction (DE 1-2) at 1–2). Further, the stated

objective of the regulation, reducing transmission of a potentially life-threatening disease in the

midst of a pandemic, is a reciprocal public health benefit shared by residents and nonresidents

alike. Though the travel restriction limited plaintiffs’ access to their property, the restriction was

temporary. In sum, the regulation is a public health program that shifted the economic burdens of

preventing transmission of COVID-19 by staying at home to persons residing outside the county.6

6 In their brief in opposition to defendant County’s motion, plaintiffs argue that defendant County’s regulation

violates the Privileges and Immunities Clause of the Constitution. See U.S. Const. art. IV, § 2; Saenz v. Roe, 526

U.S. 489, 500–01 (1999); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284 (1985); Toomer v. Witsell,

334 U.S. 385, 395–98 (1948). Such a claim, which involves an entirely different constitutional protection, is not

alleged in plaintiffs’ complaint and therefore not before this court.

Plaintiffs argue the instant case is a “temporary complete taking” where nonresident

property owners “were deprived of all use during the Declaration.” (Pl. Resp. (DE 31) at 14).

Plaintiffs also argue that the Supreme Court’s reasoning in Tahoe-Sierra is not applicable to the

instant case. However, the Court explained that “[t]o sever a 32–month segment from the

remainder of each fee simple estate and then ask whether that segment has been taken in its entirety

would ignore Penn Central’s admonition to focus on ‘the parcel as a whole[.]’” Tahoe-Sierra, 535

U.S. at 303. Subsequent cases confirm that “time is indeed a factor in determining the existence

vel non of a compensable taking.” Arkansas Game & Fish Comm’n, 568 U.S. at 38 (collecting

cases). By asking the court to focus on plaintiffs’ rights in their property during the 45-day period

in which the travel restriction was in effect, rather than the impact on defendant County’s

regulation on plaintiffs’ rights in their property as a whole, plaintiffs invite the court to ignore one

of the elementary holdings of Penn Central, which it will not do.

Plaintiffs also argue defendant County’s regulation was not effective because it allowed

exemptions for workers, county residents, and residents of three neighboring counties ingress to

and egress from Dare County. (Pl. Resp. (DE 31) at 17–18; see Compl. ¶¶ 12–13). However, the

court does not scrutinize whether defendant County’s regulation “substantially advances” the goal

of reducing COVID-19 transmission for purposes of its analysis under the Takings Clause. See

Lingle, 544 U.S. at 544. Restriction of the nonresident property owners from entering the county

to prevent the spread of disease is reasonably related to the goal of preventing transmission of

disease. Cf. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, 38 (1905).

Defendant County’s concededly legitimate exercise of its emergency management powers

under North Carolina law to protect public health in the “unprecedented” circumstances presented

by the COVID-19 pandemic, (compl. ¶¶ 6, 9, 15), weighed against loss of use indirectly occasioned

by preventing plaintiffs from personally accessing their vacation home for 45 days, (id. §J 11, 14,

16), does not plausibly amount to a regulatory taking of plaintiffs’ property.

CONCLUSION

Based on the foregoing, defendant County’s motion to dismiss for failure to state a claim

(DE 23) is GRANTED. Defendant Towns’ motion to dismiss for lack of subject matter jurisdiction

(DE 25) is GRANTED. Plaintiffs’ claims are DISMISSED. The clerk is DIRECTED to close this

case.

SO ORDERED, this the 15th day of September, 2020.

United States District Judge

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