6/3/20: VA. COUPLE FILES CLASS ACTION LAWSUIT AGAINST DARE COUNTY, OBX TOWNS FOR COVID-19-RELATED BAN ON NON-RESIDENT PROPERTY OWNERS.

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Southern Shores is among the Dare County municipalities sued by named plaintiffs Joseph and Linda Blackburn of Richmond in a class-action lawsuit brought on behalf of non-resident property owners who were denied access to their homes for 45 days or longer during the COVID-19 shutdown.

The Blackburns own property in Frisco on Hatteras Island, according to The Island Free Press, which broke the story locally. They are represented by Lloyd C. (“Clif”) Smith, Jr., who is with the law firm of Pritchett & Burch, PLLC, of Windsor.

Mr. Smith reportedly filed the class-action lawsuit on May 15 in the U.S. District Court for the Eastern District of North Carolina, which is the federal trial court that serves Dare County and 43 other eastern North Carolina counties.

The lawsuit reportedly names Dare County, Southern Shores, Duck, Kitty Hawk, Kill Devil Hills, Nags Head, and Manteo as defendants, and alleges that they violated the constitutional rights of a class of plaintiffs led by the Blackburns, causing them financial damages, including lost rental revenues.

The Dare County Control Group, on which every town mayor sits, prohibited non-resident Dare County property owners from entering the county as of Friday, March 17, at 10 p.m. and staggered their reentry during the week of May 4.

This extreme measure was taken pursuant to the county’s declaration of emergency in response to the COVID-19 threat.

The Beacon has not read the plaintiffs’ complaint, to know the specifics of the violations alleged and the relief sought.

The Island Free Press describes the complaint as claiming that the Dare County access “closure amounted to an illegal seizure of out-of-town owners’ property in violation of the U.S. Constitution.”

The Free Press further reports that Mr. Smith claims the “property owners also lost fair market value for property rentals” during the shutdown.

According to Pritchett & Burch’s website, it operates an office at 6225 N. Croatan Hwy. in Kitty Hawk, which is across the street from OBX Chevrolet Buick, near where Dare County Sheriff’s deputies operated a checkpoint at the Wright Memorial Bridge. Police screened people seeking entry into Dare County between March 17, when visitors were excluded, until 12:01 a.m. May 16, when visitors were allowed free access.

This appears to be a makeshift office. A visit to the site reveals only one law office operating in the location, and it belongs to sole practitioner Pat Hudspeth.

According to a website associated with Mr. Hudspeth, he “has taken an opportunity with a local company and is no longer accepting clients.”

The Southern Shores Town Council held a closed session at the end of its meeting Monday to confer with Town Attorney Ben Gallop about this litigation—but you would have only found that out if you had waited in front of a blank Zoom videoconferencing screen and happened to hear Mayor Tom Bennett’s “do-over” of his motion to adjourn into closed session. I suspect I was the only one who did.

At the start of the Town Council’s meeting, Mayor Bennett amended the agenda to add the closed session. At the conclusion of the business portion of the meeting, he motioned to adjourn the meeting to go into closed session, and the Council approved that motion.

At no time, however, did Mayor Bennett explain the nature of the business that required an attorney-client privileged session. In fact, he can be heard on the meeting videotape saying after his first motion for a closed session: “I should’ve got the wording for that.”

Yes, he should have. When the meeting resumed briefly in order for Mayor Bennett to make a proper motion, he referred to the name of the case, Blackburn v. Dare County et al, and gave a U.S. district court case file number of 220-CV-27.

[Update 6/5/20: The case name is Blackburn et al v. Dare County et al, and the file number is 2:20-cv-00027. According to the district court record, the case was selected for mediation May 19. Attorneys in the Winston-Salem office of the national law firm of Womble Bond Dickinson have entered appearances on behalf of Dare County.]

Town Attorney Ben Gallop should have given the Mayor the information he needed to make a proper motion—including the citation to the appropriate N.C. General Statute that gives the Town Council authority to hold a closed session for the purpose it did. Mayor Bennett included this citation in his do-over motion.

We also question why Mr. Gallop did not mention the lawsuit in his report Monday. We believe the public had a right to know.

To view the video of the June 1 Town Council meeting, see https://www.youtube.com/watch?v=Lxrgdn3O_zo&feature=youtu.be

According to the Island Free Press story, Mr. Smith said his law office would soon set up a website for property owners to obtain more information about the class action lawsuit. In the meanwhile, anyone interested in joining the class may call his office at (252) 794-3161. He will gladly send you a contract.

See The Island Free Press story at https://www.obxtoday.com/top-stories/couple-files-class-action-lawsuit-seeking-damages-for-outer-banks-non-resident-property-owners/

The Free Press also reports that Mr. Smith is representing Hatteras-based Surf or Sound Realty in a challenge to the N.C. Real Estate Commission’s opinion that “people who rented vacation homes this spring but were denied access should have their funds refunded” by the realty companies.

Mr. Smith alleges that Dare County and other Outer Banks municipalities should compensate vacation renters who were banned from the county for the deposits and other payments they made, and that Surf or Sound and its property owners should not have to refund those monies.

Surf or Sound has refused to issue refunds to visitors who lost their vacations because of the Outer Banks’ shutdown.

“Dozens of renters who lost funds to Surf and Sound” have responded to the company’s refusal, The Free Press reports, by “attempting to launch their own lawsuit.”

Ann G. Sjoerdsma, 6/3/20

2 thoughts on “6/3/20: VA. COUPLE FILES CLASS ACTION LAWSUIT AGAINST DARE COUNTY, OBX TOWNS FOR COVID-19-RELATED BAN ON NON-RESIDENT PROPERTY OWNERS.

  1. I used to clean for Blackburns…they don’t even rent their house out except to a couple friends during the year. Their children and their families are how it’s occupied 85% of time.

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    1. Thank you for your comment. I have not had a chance to read the complaint and see what damages they and other members of the class are claiming. My previous post quotes The Island Free Press’s version of the facts of the litigation. I will update as soon as I have an opportunity.

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