Apex, property owner wage sewer pipe fight at highest NC court

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  • The town of Apex and property owner Beverly Rubin have filed their latest competing briefs in a state Supreme Court battle over a disputed sewer pipe.
  • Rubin wants the pipe removed from her property. Apex argues Rubin's only legal recourse is compensation for the pipe.
  • The Pacific Legal Foundation and North Carolina Advocates for Justice filed briefs in February supporting Rubin's case.

The town of Apex and property owner Beverly Rubin have filed their latest competing briefs in their state Supreme Court battle over a disputed sewer pipe.

Prior court rulings dating back to 2016 from Judge Elaine O’Neal determined that the town installed the pipe illegally under Rubin’s property. Rubin wants the pipe moved. The town argues that she must settle for compensation instead.

“The Town’s consolidated brief is an 83-page collateral attack on the 2016 Judgment. But that Judgment was already upheld by our appellate courts in 2019. It is now set in stone,” Rubin’s lawyers wrote in a brief filed Friday.

“The premise of the Town’s brief is that its occupation was some sort of valid taking after all. But it can’t be. A taking is a government seizure of private property for a public purpose. There is no such thing as a taking for a private purpose; that’s just an unconstitutional occupation. The Town’s arguments to the contrary should be rejected out of hand,” Rubin’s brief continued.

Apex’s latest brief faults Rubin for failing to seek an injunction blocking the pipe’s construction.

“Rubin chose not to raise or exercise the right and remedy afforded to her by North Carolina law,” the town’s lawyers wrote. ”She had 4 ½ months between notice of the

intended condemnation action and the construction of the sewer line to request an injunction from the court. Unlike 100% of the other landowners in North Carolina reported cases who challenged the right to take, Rubin did not request or move for injunctive relief. Therefore, she was not entitled to injunctive relief and the O’Neal Judgment did not award her injunctive relief.”

The state Supreme Court agreed in October 2023 to take the case. Apex had requested a review from the state’s highest court in 2021.

In February, Rubin’s case attracted support from the Pacific Legal Foundation and North Carolina Advocates for Justice, the trial lawyers’ lobbying group.

“In a free society, we should not expect that when a court tells the government that a taking is illegal and unconstitutional, that it would just go ahead and seize the property anyway,” wrote PLF attorney Erin Wilcox in a friend-of-the-court brief. “Yet that is exactly what the Town of Apex did.”

“Having been told it was acting unconstitutionally, it did not do the right thing and stand down,” Wilcox added. “Instead, its only response to the court’s lawful order that the taking lacked a public use was to occupy Ms. Rubin’s land, and then claim it was too late for Ms. Rubin or the court to do anything about it. This isn’t the rule of law, but predatory government conduct that a court has the power to address even in the absence of the property owner’s trespass claim.”

NCAJ lawyers also criticized Apex’s actions. “The Fifth and Fourteenth Amendments to the U.S. Constitution and the North Carolina ‘Law of the Land’ clause guarantee that citizens shall not be deprived of their property absent a public purpose and just compensation. The Town of Apex (Apex) seeks to negate the constitutional public purpose requirement by claiming taking powers through collateral attack of an earlier judgment,” the trial lawyers group wrote.

“Apex adds insult to injury by inventing a theory of inverse condemnation that purloins both Rubin’s property and the very cause of action that exists exclusively to save landowners from illegal takings,” the NCAJ brief continued.

While Rubin wants the sewer pipe removed, Apex wants the high court to rule that the property owner cannot pursue a trespass claim or injunction against the town.

Two years after the state Court of Appeals blasted Apex for its decision to install the sewer pipe against Rubin’s wishes, the state Supreme Court agreed to take the case.

The town requested a review from the state’s highest court in June 2021. Rubin objected. But Rubin’s lawyer wrote at the time that the state Supreme Court could address the following question: “Did the Court of Appeals err by failing to order the Town to stop its occupation of Ms. Rubin’s land?”

The high court accepted both Apex’s appeal and Rubin’s request.

The legal battle stretches back to 2015. When Rubin rejected a developer’s request to grant a sewer easement across her property in rural Wake County, the developer turned to the town for help. Apex moved to acquire the easement through the town’s power of condemnation.

As Rubin fought the condemnation in court, Apex went ahead and installed the disputed sewer pipe. The town justified its move on the basis of its “quick-take” powers. Those powers, granted by state law, gave Apex the right to take immediate possession of condemned property.

But Rubin ended up winning her battle against condemnation. Courts determined that the taking of Rubin’s property did not serve a public purpose. The taking benefited the private developer instead. He had turned a $2.5 million profit after selling the tract of land that would gain sewer service because of the disputed pipe.

Despite Rubin’s court win, the sewer pipe she never authorized remained on her property, now serving a 50-home subdivision.

Rubin wanted the pipe moved, but Apex refused to comply. The town shifted gears legally, arguing that the dispute involved an inverse condemnation. Under that circumstance, the only remedy Rubin could pursue was payment from the town for her condemned property.

Superior Court Judge Bryan Collins accepted Apex’s newly crafted argument. Property rights advocates raised alarms. The John Locke Foundation joined a friend-of-the-court brief supporting Rubin.

A unanimous three-judge panel of the NC Court of Appeals sided with Rubin in May 2021.

In a 44-page opinion, Judge Lucy Inman took both Apex and the trial judge to task. Apex “asks this Court to uphold the Town’s continuing intrusion onto the land of a private citizen through a circuitous and strained application of North Carolina law on eminent domain and inverse condemnations,” Inman wrote.

“The Town’s position, in essence and when taken to its logical conclusion, is as follows: (1) if a municipality occupies and takes a person’s private property for no public purpose whatsoever, that private landowner can do nothing to physically recover her land or oust the municipality; (2) if the encroachment decreases the property’s value, then the landowner’s sole remedy is compensation by inverse condemnation; and (3) in all other instances, a landowner is powerless to recover or otherwise vindicate her constitutional rights.”

Inman and colleagues rejected that line of legal reasoning. “This is not the law, nor can it be consistent with our Federal and State Constitutions.”

Collins “erred” in determining that the taking of Rubin’s land for a sewer pipe amounted to inverse condemnation, appellate judges ruled.

Inverse condemnation “is a claim assertable by landowners against a government entity,” not a claim a government can make against a property owner.

“Although case law uniformly establishes that inverse condemnation claims inure in favor of landowners against government entities that have declined to pursue direct condemnation, the Town maintains that its installation of the sewer pipe — and subsequent defeat in the direct condemnation action — mean that the Town can compel a determination — against Ms. Rubin’s express interest — that it took title to a sewer easement by inverse condemnation,” Inman wrote. “The Town’s argument is not supported by the facts or the law.”

Apex lost the initial court battle because its taking of Rubin’s land served no legitimate public purpose, Inman reminded readers. “[T]he public purpose requirement serves as a shield to protect the landowner from government intrusion rather than as a sword to cut away private property rights,” she wrote.

Accepting Apex’s argument would “open the door to numerous constitutional harms,” Inman warned.

For example, a city could use its condemnation power to pave a landowner’s gravel driveway “for no public purpose whatsoever, even if the landowner, in the exercise of his private property rights and out of a personal preference for gravel, had never sought to increase the value of his lot by paving the driveway.”

If the city lost in court, “the theory that inverse condemnation damages were the property owner’s sole remedy would preclude relief for the municipality’s flagrant violation of the landowner’s constitutional rights,” Inman explained. “We do not believe the law of inverse condemnation can be used to facilitate such an abuse of the government’s eminent domain power.”

Despite the Appeals Court’s rejection of Apex’s legal arguments in 2021, the future of the disputed sewer pipe remained in limbo. Inman and her colleagues agreed that Rubin would need further legal action. She would have to pursue a new trespass claim against the town There was no guarantee that a new court case would force the town to comply.

“[T]he Town still refuses to accept the consequences of its unconstitutional taking,” Rubin’s lawyer wrote in June 2021. “The Town asks this Court to step in and save the Town from itself. That invitation should be rejected for a host of reasons.”

“First, the Town created this mess by moving forward with its flawed condemnation even after Ms. Rubin told the Town that she would be challenging its right to take in the first place,” according to Rubin’s Supreme Court filing.

“The Town knew it was a risk to blaze ahead with construction while its threshold right to condemn was being challenged,” the court filing continued. “This Court explained decades ago the consequences of that decision: ‘Even if the [government] now finds itself embarrassed by its having constructed the road prematurely, … [it] may not assert such embarrassment as a bar to this right of the [property owners].’”

“[I]t is hard to imagine another municipality behaving the way the Town has here,” Rubin’s lawyers argued.

Apex might have to “re-route the sewer pipe around Ms. Rubin’s land — something the Town could have done at any time,” according to the court filing. “Or, the court might decide that the Town is engaging in a sort of forced perpetual lease, and must pay for that use under the law of continuing trespass.”

The Supreme Court has not yet scheduled Town of Apex v. Rubin for oral arguments.