Outer Banks property owners file federal suit challenging restrictions to their homes
The suit, filed Tuesday in the U.S. District Court for Eastern North Carolina, was brought by John P. Bailey, Paul W. Michael Jr., his wife Sheryl S. Michael, E. Thompson Brown, Todd A. Edgar and his wife Babette S. Edgar.
The Michaels and Brown, who live in Virginia, use their properties in Dare County as second homes, while Bailey and the Edgars use their homes as rentals. Bailey lives in South Carolina and the Edgars in Maryland.
“This action is brought by plaintiffs who seek to protect their right to travel, to engage in a common calling or occupation, and to obtain medical treatment as is guaranteed to them as citizens of the United States” by the U.S. Constitution, the suit reads.
On March 20, the Dare County Control Group — a multi-jurisdictional policy-making body that assumes a leadership role for the entire county during emergencies — amended a March 17 emergency declaration restricting visitor access to include non-resident property owners. Law-enforcement checkpoints have been established at both bridges into Dare County to help prevent the spread of coronavirus.
The plaintiffs in the suit are not legal residents of North Carolina, and are therefore prohibited from accessing their property.
Raleigh attorney S.C. Kitchen, who is representing the property owners, said the plaintiffs aren’t questioning any of the other coronavirus restrictions in place in Dare County, and they are not seeking monetary damages.
“They simply want to get to the property they own and pay for,” he said in a phone interview.
The lawsuit contends that the prohibition on the entry of out-of-state property owners violates the U.S. Constitution’s Privileges and Immunities Clause, which says citizens of each state are entitled to all privileges and immunities of citizens in every state.
“You are a citizen of the United States,” Kitchen said.
In addition to the constitutional violation, the suit claims Dare County officials amended the local state of emergency declaration by resolution rather than by ordinance, as required by state law. Therefore, the suit contends the move to prohibit property owners was enacted without legal authority.
The lawsuit asks the court to immediately allow access to all property owners.
“If not enjoined by this Court, Dare County will continue to discriminate against the Plaintiffs, and deprive them of their Constitutional rights. The Plaintiffs will suffer irreparable injury due to this deprivation of Constitutional rights,” the suit reads.
Dare County spokeswoman Dorothy Hester said the county has not been served the lawsuit and is unable to comment on possible litigation.
These people are thinking of only there self , great your able to have proberty here, the world has a virus like do you not understand that u y’all are in it to , ur house is fine , it’s not a hurricane a tornado it is an invisible virus killing people, stay home stay safe, stay off are beach
First, you’re not going to convince anyone of anything with that grammar and spelling. Go back to school.
Second, these people will win their suit. Their property has effectively been seized by the government of Dare County without compensation and that’s not legal.
Not seized, not prevented from their property. Just not allowed in the county. Why are people so upset that they are not able to spread the virus? Your property rights do not hold precedence over endangering the public.
Interesting that you think non-resident property owners/tax payers spread the virus. Why right now, Dare County has 10 cases of COVID-19? How could this be when everyone thought that merely barring non-residents would protect everyone from the disease? You yourself admitted that a recent case at a nursing home was brought by a RESIDENT virus carrier! Could it be that depriving non-residents legal access to their property while allowing residents to freely come and go on and off the island was short-sighted ? That maybe someone like a resident caregiver could be a virus carrier? Certainly Dare County thought it had a right to limit access under the concept of “Police Power,” [which gives government entities the power to exercise reasonable control over persons and property within its jurisdiction in the interest of the general security, HEALTH, SAFETY, morals, and welfare] yet it appears that implementing this “power” was ultimately not executed in the best interests of the health and safety of residents since they were allowed to come and to freely to shop and work in the Tidewater area where the disease had already taken hold weeks before. The order banning non-resident owners access was discriminatory in nature and served no other purpose than to deprive them of legal access to their property without valid justification. Furthermore the argument that the little local (20-bed) hospital in Nags Head could not support an influx of non-residents was also invalid, since it is commonly known by non-residents and residents alike that any and all medical treatment (even something as simple kidney stones) requires a trip to a hospital in the Tidewater area under normal circumstances. Buddy Russell, I’m sure you have no clue what I’m talking about and are unable to follow anything I just wrote. Maybe the best thing is to have the island completely shut down for 18 to 22 months. Of course, your economy would dry up–as would your small business… bankruptcy would be prevalent throughout, which would bring more crime and more drug problems than you already have in Kitty Hawk and Kill Devil Hills. No non-resident has or will bring the virus. It’s already upon you–brought by one of your OWN.
Buddy Russell–you endanger your community’s future with your small-minded views. Face it–your economy relies on tourism dollars which is made possible in large part by non-resident, second homeowners who rent their homes out. I’m sure the big rental agencies would agree! (Twiddy, Sun Realty, Beach Realty, Village Realty, Joe Lamb, Midgett Realty). The others who don’t rent their homes out, use local businesses for everything from plumbing, to heating, landscaping, etc. No one wants to “invade” or endanger anyone. Being allowed access to legally owned property is a right. Being allowed to shelter in place and engage in social distancing is our right. Being denied that right is discriminatory.
All great points. Trust me, there’s no use trying to get through to Buddy, he’s refuses to accept reality and believes everyone that isn’t a resident is the source of all Dare’s problems. Thankfully he isn’t the majority.
Agreed. 5th amendment states, “No person shall be subject nor be deprived of life, liberty, or property, without due process of law.” NC declared a state of emergency which would probably constitute due process, but that doesn’t give Dare county the power to self quarantine. No other towns in the country are turning away tax paying property owners….
Wow.
“This action is brought by plaintiffs who seek to protect their right to travel, to engage in a common calling or occupation, and to obtain medical treatment as is guaranteed to them as citizens of the United States”
I pray this group has a justifiable economic reason that is “occupation” related as in this dire world situation “common calling” is hardly justifiable and ostensibly apprears selfish in nature.
They can’t justify coming here for medical reasons as OBX hospital has approximatly 20 beds. I can guarantee our supply of venalators and skilled pulmanologists is not exceptional. Not coming here could be a blessing in disguise for these folks.
I support our Governers, Representatives and commissioners who made this tough decision to stop the spread. The outcome of this lawsuit will be interesting.
Dare county should reimburse all NRPO all the property taxes for the time they can’t get to their own property. All permanent Dare county residents should only be allowed to leave the islands for essential reasons (work, health). This is a complete double standard.
Home owners should be permitted to come and quarantine in their house if they want. I understand the locals concern …stay inside as your supposed to and you will not get this virus. Bob Woodard your a total disgrace period!!!
As a non-resident property owner who did get onto the island before the restrictions I must say that I feel quite safe.
As for all of the concerns about the Healthcare System I have to say that I feel like I’ve been paying high taxes that must be being misspent if they are not creating the infrastructure to serve all property owners 365 days a year.
Are you kidding, Dare county has one of the lowest tax rates in the state!! What cave did you emerge from where you paid lower taxes? You think they should have a 300 bed hospital with hundreds of doctors waiting for you when you decide to be a super spreader and infect hundreds of people because you can’t stay home for 2 MONTHS during the worst global pandemic in a 100 years?!?
yeah what a horrible problem you cannot get to your second home. Lord forbid the people of the outer Banks community who have been born and raised here want to protect themselves, their families and friends. The owners were allowed down here at one point, they also were taking advantage of the situation. known instances of owners going in grocery stores buying up all of our goods bragging in the checkout line about how a lot of the stuff they were going to take back home because they were just getting it because they couldn’t get it where they live. other situations that included owners coming down here mailing re-entries and other credentials so friends could use them to get through the roadblock. also when you have people coming from the whole East coast obviously that’s going to highly increase our chances that much more of having a out of control situation. thus far we’ve been doing extremely well and one could argue that we’re doing a good job controlling it from getting out of hand on the same level it has in other areas. nobody’s trying to prevent anyone from getting to their houses were trying to prevent the spread of a deadly disease within our community. Case and point: so if it gets really bad down here, are they going to go back from wherever they came from? so it’s okay for them to come here and spread it and leave? and then you have people up top there commenting on people’s grammar implying we are a bunch of hillbillies with low IQs. you wonder why we don’t want people like you down here. me personally I wouldn’t want to be at a place where people did not want me to be there to begin with. we love are out-of-state owners and summer renters and we want them to come down here, we depend on them to come down here, but the fact of the matter is with a small population of the outer Banks if the situation gets out of control down here there’s not going to be a whole heck of a lot to come to down here. these owners should be supporting our decisions because we are helping to protect their investments. also I must say at the end of the day I don’t think it has anything to do with them owning houses I think that that is the only hole in the loophole that they can find to justify them wanting to come down here… at the end of the day it’s just selfish. most people on this outer Banks would give you the shirt off their back, we are a community of humble and caring people not only do we want the best for our own family and communities, but we want to also be able to provide, when the time is right, a safe place for people to return to. we want are owners and tourists here as much as you guys may drive us nuts we would be absolute fools to claim that a lot of us could survive without the owner’s and the tourists business. we just want everybody to stay home at their actual home cuz the fact of the matter is if their home down here was their home they wouldn’t be having to try to get here would they?
It’s a constitutional problem, from a legal perspective how does Dare county have the right to close access to tax paying property owners, without even compensating them? I haven’t heard of any other county putting in the same restrictions as Dare county has. It’s very easy to stereotype the horrible NRPO who have bought up all the essential goods, except it’s literally been happening everywhere in the country. Do you have any evidence that RPO weren’t also reacting the same way or does it just benefit your argument more to say it was all NRPO? I understand that Dare is trying to prevent the spread of the disease, but their approach has been nothing but short sighted and bias. Are RPO restricted from coming and going from the county based on essential reasons only? No, they’re not. Helping to prevent investments how? Is Dare county conducting wellness checks on NRPO’s houses? You’re making grand assumptions that if someone is a NRPO they must be infected and will only cause harm to people who are “born and raised” on the island. Not exactly words I would expect from someone who is willing to give the shirt off their back and it definitely has an air of superiority….
Pretty well written. But you are to capitalize the first letter of every sentence.
Thank you! Well said.
Let’s dig in a little deeper. Will these rental home owners be willing to register each day they use their home themselves so we can how many days they stay. Tax law limits usage to 14 days per year if all rental expenses are going to be claimed. Of the homes I see riding my bike many have the same vehicles there during the summer for a week, along with the fall and spring and sometimes winter. The point is very few people limit themselves to 14 days. If someone is demanding access to quarantine in their rental home then they must be planning on staying at least 14 days as that is the minimum one should self-quarantine. Are we supposed to believe they will follow the letter of the tax law, adjust their tax forms for 2020, and return home at the end of the 14th day. If so then they are vacationing and if not they are most likely going to commit tax fraud in 2020 as it is doubtful they will state they used it more than 14 days.
I realize that of the plaintiffs those who have 2nd homes that are not rented are not affected by this, but I suspect there probably is some exaggeration of ownership type going on here. A few of the names can be looked up on the Dare County GIS. I have not gone further to see if these same homes are rented through one of the realty companies or VRBO, etc. I am sure a motivated person could look into this and do a drive by to see what signs are on the houses.
Dare will pass an ordnance to put this behind them and prepare for the future. I know the courts are closed and I doubt this is worthy of a urgent review. If someone really wants to be here then move here permanently otherwise it sucks to be you.
I think you have real potential to be the “Sheriff Nottingham” of OBX, ensuring tax law is adhered to. I’m just kidding, we’re all part of the tribe. I would suggest pulling the thread a little more on what the tax code says though. It’s considered a residence if it’s “used for personal purposes during the tax year for more than the greater of 14 days or 10 percent of the total days rented to others at a fair rental value.” If those owners are using their days to “maintain” the property, it shouldn’t count as a “Leisure” day and would thus be not applicable.
Good data. “We are all part of a tribe” is exactly right. We are a tribe of humanity. Let’s all remember that having different opinions is what makes this country so beautiful. We don’t all have to agree. Let’s keep respecting one another for our differences and even when we disagree still lift each other up. This is how one truly influences another. We all come from different backgrounds that each of us can learn from. I learned this lesson myself when I moved here. Everyone that we encounter has a role to play in our own personal growth. It is our duty to help each other and protect the most vulnerable. Stay safe everyone.
Dude, it’s 2 months out of your life. Stay home. Your house will be fine. This will pass. Give it a rest.
You’re completely missing my point…
You get your mail where? That is your residence, where you live.
Again, missing the point. This a constitutional issue that Dare county doesn’t have the power to infringe upon.
Oliver- I get your point. However, one must make an active choice to enter into a lawsuit. I am still interested in what motivates an individual to put their energy into this particular lawsuit at this specific time, while this world is truly hurting. I’d like to understand it in more depth rather than pass judgement on any group of individuals. I’d personally prefer to read stories about others coming together to help and protect the most vulnerable. However, I will follow this one as I do think the outcome will be interesting.
I understand people want to focus on the positive of this outbreak. Ben Franklin summed it up best, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” The legal right and the moral right don’t always parallel each other, but laws exist for a reason and should only be circumvented through due process. I believe Dare county exceeded their authority. I still haven’t heard of any other counties in the country that took it upon themselves to close down entry ways to property owners, regardless of resident status.
Oliver- You have a fair POV that I can respect. I’d be interested as well in how this action compares to the actions taken in other island communities w/ a similar level of hospital limitations. Where can we find that data?
I think the question is more in regards to remote communities with hospital limitations, in which I haven’t heard of any except for Dare county. I think that Hatteras being an island is inconsequential.
Are you sure? I am not an expert in island community infrastructure in relation to rural community infrustructure. However, when a person is in critical condition on HI a helicopter is often used for patient transfer. When considering a pandemic where there are large #’rs of people needing helicoptor resources, this is where choosing who lives or dies might come into play. Is this the same set up in a rural land locked community? (I don’t know as I came from the city where there were lots of hospitials in driving distance) 😉
I’m not an expert either. Although I believe its outside of the discussion of whether or not Dare county can restrict access to NRPOs. I don’t doubt that Dare doesn’t have the capacity to treat an outbreak for RPOs, let alone NRPOs. That being said, don’t most of the medevacs end up going to Norfolk or Elizabeth city anyway? I would argue that the Florida keys are similar in regards to infrastructure, and they’re restrictions are no where near as strict.
Dare County is not seizing your property, it’s just saying you can’t go there for a FEW weeks. It will be alright, your house will be fine, and come June you can walk yourself down to the beach and sit all day long.
I’m fortunate to know people on the island that I trust to look after my place, but again, that’s not the concern. NRPOs are being “deprived” of their property without due process while RPOs are held to entirely different standards allowing them to come and go as they please… double standard…
You are not being “deprived” your right to possess property, you still are allowed to own title to it, it’s just that you can’t gain access to it’s physical location for a short time because we are in a national state of emergency, much like a war, or major natural disaster like a hurricane or earth quake. I think you just don’t be like being told that you can’t have something, like going to visit your beach house, so you are calling it a double standard, you are the one missing the point, and it just won’t register with your thought process. No one is saying you can never go back.
So you want to break the law and travel, you want to break the law and not stay home, you want to break the law by harming others. Yet you complain about a piece of property. You would be breaking the law even if we did not bar those intent to destroy us.
Your assuming I was going to come down and I’m breaking the law by going out, which I haven’t. I had the option to but I’ve chose not to. Read my original post, Dare county residents can come and go freely without having to prove any evidence that their reasons are essential. That’s a double standard that doesn’t exist anywhere else in the country..
Maybe dale cty. should buy a billboard on the highway to expess their true feelings:”NRPOs, we want your money, not your presence”,
NRPOs change your approach. Minimize dale cty taxes paid by NEVER buying local products, goods, or services. Long term, divest in dale cty, and go find places where they don’t trample your property rights.
From the VAPilot
Plaintiffs in the lawsuit are John Bailey of South Carolina; Thompson Brown of Virginia; Paul Michael Jr. and his wife, Sheryl Michael, of Virginia; and Todd Edgar and his wife, Babette Edgar, of Maryland. The suit was filed by Raleigh attorney Chuck Kitchens.
People need to get a grip and realize that there is no way to run or hide from this virus. There will be no cures or vaccines for the current generation. We are all destined to catch this virus and get over it. Vulnerable people need to be quarantined while the other 80% of the population goes about their business. Instead of placing everyone in a bubble only the at-risk population should be committed to living in a bubble. It certainly not the fault of the 80% majority that they are not high risk.
Unfortunately, it is a hospital bed capacity issue at present. Hopefully, that will change. I’ve been working from home on a global company wide mandate since early March. I’d never thought I’d say that I am starting to miss the airport, but I am. I know 2 people in there 40’s who have died from this both in the SFO area and both are now widows who have young kids at home and were not able to say goodbye to thier husband after driving them to the hospital b/c they needed to go home and be quarentined. I am happy to do my part to stay home while the hospitals ramp up (my company is helping hospitals across the US access PPE supply). Once we get the data, infrastructure and supplies in place, going about our days is just what we will all do. This too shall pass.