PLF, trial lawyers back homeowner in Apex sewer pipe fight

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  • The Pacfiic Legal Foundation and North Carolina Advocates for Justice have filed briefs at the state Supreme Court supporting a homeowner in her fight with Apex over a sewer pipe.
  • The state's highest court agreed in October 2023 to take the case, more than two years after Apex asked for a Supreme Court review.
  • Beverly Rubin wants Apex to remove the pipe, which serves a 50-home neighborhood. Apex argues that Rubin is entitled only to money damages.
  • Lower courts have ruled that Apex violated Rubin's legal and constitutional rights by installing the pipe under her property.

The Pacific Legal Foundation and North Carolina Advocates for Justice are supporting a homeowner in her dispute with Apex over a sewer pipe. The dispute has reached North Carolina’s highest court.

Beverly Rubin wants Apex to remove the pipe, based on previous court rulings that the town installed it illegally. Apex is fighting to maintain the pipe’s current location. It serves a 50-home neighborhood.

“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 filed Wednesday. “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.”

“This case is an opportunity to reaffirm a foundational principle of limited government: the sovereign power of eminent domain does not extend to taking private property for private use, and the Town’s attempt to do so was utterly void — not merely voidable,” Wilcox wrote.

The PLF brief questioned a state Appeals Court ruling that Rubin would have to file a new trespass claim to pursue her complaint against Apex.

“Underlying the Court of Appeals decision is the incorrect assumption that the Town’s invasion and occupation of Ms. Rubin’s land was a run-of-the-mill tort, redressable solely by a separate trespass action,” Wilcox wrote. “But exercising the sovereign power of eminent domain to seize property — especially after the courts have held that the taking is not appropriate — is not merely a civil wrong, but the government acting well outside its constitutionally delegated powers.”

“As a party which acted unconstitutionally and in derogation of fundamental property rights, the Town — and not the innocent property owner — bore the risk when the Town installed the sewer line,” Wilcox added. “The Town thus also bears the affirmative burden to remove it when its gamble that it could install the sewer line, contrary to the court’s order, went bad.”

North Carolina Advocates for Justice, the state’s advocacy group for trial lawyers, submitted its own brief Wednesday supporting Rubin.

“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,” NCAJ lawyers 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.

“The Court of Appeals correctly vanquished these untenable contortions and disallowed Apex’s end-run attempts at inverse condemnation through a back-door declaratory judgment, but the panel erred in applying this Court’s precedent in two ways,” NCAJ lawyers argued.

First, the trial lawyers group argued, appellate judges failed to recognize “[a]ll rights and title reverted to Rubin” once she won her initial victory over Apex in an eminent domain dispute. Second, the court failed to recognize that the original trial court maintained jurisdiction to address Rubin’s complaint about the pipe.

“Any requirement that deprives Rubin of a cure for the unlawful deprivation of property is contrary to our State’s deepest history and jurisprudential traditions. In North Carolina, this is the law of the land,” NCAJ lawyers wrote.

Apex and Rubin submitted written arguments to the state’s highest court on Jan. 31 in the nine-year battle over the disputed sewer pipe.

The state Supreme Court agreed in October 2023 to take up the property rights case. The town had requested a Supreme Court review in 2021.

“The government can take private property for a public purpose, provided it pays the property owner just compensation. But no amount of money permits the government to take private property without a public purpose,” Rubin’s lawyers wrote in a brief. “Our state and federal constitutions foreclose any debate over these principles.

“The Town of Apex would prefer that were not so,” Rubin’s brief added. “In 2016, a superior court judge told the Town of Apex it had no right to take Ms. Rubin’s property. That judgment was upheld on appeal. At that point, there was nothing left to be done except for the Town to leave Ms. Rubin’s property.”

“But the Town refused to leave,” according to the brief. “The Town convinced the Honorable G. Bryan Collins that it had the right to stay on the land and pay just compensation after all, based on a series of confusing and flat-wrong legal theories. The Court of Appeals correctly disregarded the Town’s inventions, reversing Judge Collins in part and reaffirming the trial court’s underlying 2016 judgment.”

“Yet, the Court of Appeals failed to go far enough to protect Ms. Rubin’s property rights,” her lawyers argued. “Writing for the panel, the Honorable Lucy Inman opined that, since the Town refuses to leave her land, Ms. Rubin now needs to pursue a trespass claim in a new action, under which the government might be allowed to continue to occupy her property.”

“That holding is not the law, and it is dangerous,” the brief continued. “When a North Carolina court tells the government it has no right to invade the property of a North Carolinian, the government must leave. A citizen like Ms. Rubin does not need to separately ask the courts to enjoin the government from violating a valid judgment. The citizens of this state have the right to expect that the government will obey court orders.”

“The Town invaded Ms. Rubin’s property nearly a decade ago. It is past time for the Town to leave. That is what our state and federal constitutions require,” Rubin’s lawyers wrote.

Apex’s contrasting brief blamed Rubin for failing to seek court action sooner “that could have prevented this situation from occurring.”  Rubin never sought an injunction that could have blocked the pipe, the town argued.

“So where does that leave us. The Town has and maintains a sewer line 18 feet below Rubin’s property that is part of the Town’s public sewer system,” Apex’s lawyers wrote. “The sewer line serves and is relied on by 50 households and families/residents of the Town of Apex. Due to the development in the area and topography of the surrounding properties, there are not reasonable alternatives to the existing sewer line to serve these 50 + Town residents.”

“Although the sewer line is a physical invasion 18 feet beneath Rubin’s property, the Town does not need and will not have to access the surface of Rubin’s property to maintain or service the sewer line – this can all be done from the neighboring properties,” the Apex brief added.

Apex seeks “to provide Rubin a monetary remedy – which she told the Town was her desired remedy in the original condemnation action,” town lawyers added. “If Rubin does not want to avail herself of this remedy, that’s fine, it’s her call. But injunctive relief is not a remedy available to her.”

“The Town recognizes that it is not ideal for a landowner to have a sewer line under their property that was not authorized pursuant a condemnation complaint. But it is important to keep in mind that the sewer line exists due to Rubin’s failure to avail herself of available remedies,” according to Apex’s brief.

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.