State Supreme Court will take up legal battle over disputed Apex sewer pipe

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  • The state Supreme Court has agreed to take up a case involving a property-rights dispute over a sewer line in Apex. The town requested a review from the high court in June 2021.
  • A unanimous Court of Appeals panel criticized Apex and Superior Court Judge Bryan Collins for arguing that the town had secured rights to the sewer line's property through inverse condemnation.
  • Property owner Beverly Rubin asked the high court to decide whether the Appeals Court should have ordered Apex to "stop its occupation" of Rubin's land.

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

The town requested a review from the state’s highest court in June 2021. Property owner Beverly 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?”

Orders issued Friday show that the high court has 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.”

Apex and Rubin will have opportunities to file new briefs before the state Supreme Court schedules the case for oral arguments.