- The North Carolina Supreme Court heard an hour of oral arguments Tuesday in a dispute between Apex and property owner Beverly Rubin over a town sewer pipe.
- State courts have ruled as early as 2016 that Apex violated Rubin's rights by installing the pipe for a private purpose. It now serves a 50-home subdivision.
- The state's highest court must decide what remedy Rubin can seek for the constitutional violation.
North Carolina’s highest court wrestled for an hour Tuesday over what to do about a sewer line Apex installed in 2015 to serve a new subdivision. Courts have ruled as far back as 2016 that the town violated Beverly Rubin’s rights by installing the line under her property.
The sewer line now serves a 50-home subdivision. Rubin wants the pipe moved. The town argues that she must settle for compensation instead.
Superior Court Judge Elaine O’Neal ruled in 2016 that Apex had proceeded with the sewer line for a private purpose, rather than a public purpose that would have entitled Rubin to just compensation from the town.
“The fundamental principles here — they’ve been established for hundreds of years,” argued Matthew Leerberg, Rubin’s lawyer. “It amounts to this: No amount of compensation allows the government to occupy a citizen’s property for a private purpose. Period.”
“If you have no right to be there, you have to leave,” Leerberg added.
Apex argues that Rubin failed to seek an injunction years ago when she first raised concerns about the town’s actions.
“Rubin had a remedy,” attorney David Ferrell said on Apex’s behalf. “She just chose not to raise it.”
“No one in this state has had a problem following the statutory process except for Ms. Rubin,” Ferrell added.
Justices aimed questions at both lawyers.
Chief Justice Paul Newby questioned the town’s argument that Rubin’s only possible remedy for the invasion of her property is compensation.
“What would ever be the incentive of a town to be constitutionally compliant?” Newby asked. “If it’s for a public purpose, you get money — the value. If it’s for a private purpose, it’s an inverse condemnation according to the theory you’re propounding, and you get money. What’s the incentive for the government to do the right thing?”
Justice Richard Dietz challenged Apex’s argument about Rubin failing to seek an injunction.
“It’s not on the landowner to ensure that the governor is complying with the constitution,” Dietz said. “The government has that duty.”
“This taking was not for a public purpose, which means it cannot be done,” Dietz added. “But your client did it anyway. Why should it matter that they didn’t seek injunctive relief? Your client is the wrongdoer — violated Rubin’s constitutional rights.”
Justice Trey Allen questioned Apex’s decision to move forward with the sewer line over Rubin’s objections.
“Why didn’t the town pump the brakes when it was notified there was a constitutional challenge?” he asked. “Why did it barrel ahead?”
Allen also challenged Apex’s argument that state law limited Rubin’s proper response to the town’s actions. “The law can’t authorize what the constitution prohibits,” he said.
Justice Anita Earls asked why Rubin did not seek an injunction when she first raised objections to Apex’s plan.
“We recognize that landowners have obligations to protect their interests in their land,” Earls said. “Why isn’t the requirement that a landowner in these circumstances seek a preliminary injunction an appropriate remedy and avenue to protect their rights?”
The state Appeals Court issued a May 2021 ruling largely favoring Rubin. But Appeals Court judges determined that Rubin would need to file a new complaint against Apex to resolve the case.
Justice Phil Berger Jr. cited a 1955 court precedent to suggest that Rubin might not need to file a new lawsuit. It suggested that a constitutional prohibition against the taking of property is “self-executing.”
“it would seem that, if we were interested in protecting constitutional rights and preserving judicial economy, that we wouldn’t require a landowner who has been victimized to go through additional steps,” Berger said. “If it is self-executing, we could merely instruct trial courts to move forward with these types of constitutional violations.”
“If Ms. Rubin has to bring a third action and travel through a decade of this, I can’t imagine any other landowner having the wherewithal or stamina to do this,” Leerberg responded. “This is that unique case where the landowner is willing to fight city hall for a decade. I’m concerned that this court’s precedent is going to set the tone for what every other landowner, including those of limited means, are going to have to do when the government comes and takes their land.”