The Fourth Circuit just handed down a new regulatory-takings opinion, Blackburn v. Dare County. Judge Richardson wrote for a unanimous panel that also included Judges Agee and Rushing. Here is the opening paragraph:
Joseph Blackburn, Jr. and Linda Blackburn 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, the Blackburns 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 the Blackburns’ suit for failure to state a claim, the Blackburns appealed. But we affirm. The ban did not physically appropriate the Blackburns’ 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.