OCEAN CITY — In a case that bears monitoring because of the similarities, a civil suit was filed in federal court this week challenging a prohibition on non-resident property owners entering a coastal county in North Carolina’s Outer Banks due to the ongoing pandemic.
On Tuesday, seven plaintiffs filed suit in U.S. District Court challenging Dare County, North Carolina’s prohibition on allowing non-resident property owners from entering the coastal area in the Outer Banks. In the complaint, the plaintiffs assert their constitutional rights are being violated because Dare County has prohibited them from utilizing their second homes and vacation properties.
The case bears scrutiny locally because of the tens of thousands of non-resident properties in the resort area. While Ocean City thus far has not adopted such stringent measures, and it appears likely they won’t at this point, last week resort officials passed an emergency declaration prohibiting hotels, motels, condominiums and all short-term rentals including online platforms from accepting any new rentals through at least April 30.
Ocean City has stopped short of prohibiting all non-resident property owners from entering the resort, but it continues to urge non-residents to stay at their primary residences and not visit the resort area until some semblance of normalcy returns.
In the Outer Banks case filed this week, the complaint states, “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. The county of Dare has purportedly enacted a state of emergency in connection with the outbreak of the COVID-19 virus. As part of the state of emergency, the defendant has prohibited the entry of non-resident visitors and non-resident property owners. The defendant does allow residents living in Dare County as well as the counties of Currituck, Hyde and Turrell to enter Dare County.”
Some of the plaintiffs, whose primary home addresses include Maryland, Virginia and South Carolina, use the properties as second vacation homes while others utilize their properties as vacation rentals.
“As the plaintiffs are not legal residents of the state of North Carolina, they are precluded from entering Dare County by the state of emergency declaration,” the complaint reads. “This prohibition on the entry of out-of-state residents who own property in Dare County is in violation of the privileges and immunities clause of the United States Constitution.”
On March 16, Dare County declared a state of emergency due to the COVID-19 virus. The state of emergency was amended on March 20 by a second declaration which prohibited the entry of non-resident visitors and non-resident property owners. After the second declaration, checkpoints were established to prevent the entry of non-residents.
As a result, in order to enter Dare County, or other coastal counties in North Carolina’s Outer Banks, a person has to have a permanent resident entry permit or a valid North Carolina driver’s license or other government-issued identification their primary residence address.
“There is an actual and present controversy between the parties,” the complaint reads. “The plaintiffs contend that the actions of Dare County in enacting and enforcing its state of emergency declarations are unconstitutional and without lawful authority.”
Allowing primary residents of Dare County and of neighboring coastal counties to move freely about their home areas, notwithstanding the state of North Carolina’s overall “stay at home” directives, but prohibiting non-resident property owners from other states from doing the same, the complaint alleges Dare County is discriminating against the named plaintiffs in the case.
“The plaintiffs have suffered and are continuing to suffer injury from the challenged actions of the defendant, Dare County,” the complaint reads. “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 depravation of constitutional rights.”
The complaint does not seek punitive or compensatory damages against Dare County for its perceived unlawful orders, but rather injunctive relief.
“The plaintiffs have no plain, speedy and adequate remedy at law,” the complaint reads. “Damages would not fully redress any harm suffered by the plaintiffs because they are unable to engage in constitutionally protected activity.”
Of course, given the machinations of the legal system, the COVID-19 crisis could, and hopefully will, have abated before the case is heard and resolved. Nonetheless, it bears close scrutiny because of the similarity in circumstances with the resort area.