Here's the latest on a kind of strange case we've been following.
Our case starts off as a somewhat typical public use challenge. After a developer failed to negotiate purchase from Rubin an easement for a sewer line to serve a nearby housing project, the developer enlisted the Town of Apex to lend a hand.
Next, whaddaya know, the Town is taking the easement for the developer's sewer line from Rubin by eminent domain, with the developer paying the compensation and the costs of the lawsuit. If this sets off your private benefit radar, you'd be right. The North Carolina courts sure thought so. No public use.
You might think that this would signal the end of the matter. We know what would happen if the Town had affirmatively abandoned the taking. In that case, it wouldn't be off the hook if it walked away, and although it would not be able to execute its desired permanent taking, the Town could be liable for compensation for any temporary taking while it prosecuted the (failed) condemnation.
But this situation is different, because here, the Town wants to take the property, but the court said no. Now what? You might think that the Town would have another go, this time with all the "private benefit" stuff scrubbed out. We've been down that path before, and a second court may well say 'yes there is smoke, but I don't see fire" and let the second condemnation go ahead.
But no. Not deterred, the Town decided "who needs public use or even a second (cleaned up) taking; let's just take it anyway" (we're paraphrasing of course, but you get the drift). While the court was considering the case but before it imposed any remedy for the pretextual take, the Town simply installed the sewer line using its quick take power.
Ah the old "midnight building permit" recast as "Midnight Eminent Domain."
Now what ... again?
The trial court rejected Rubin's request for a mandatory injunction ordering the Town to get the sewer line off her property. The court concluded that the remedy for the Town's trespassing with a sewer line on Rubin's land was for her to sue for inverse for compensation for compensation, which she had not done. Lacking an inverse claim, the trial court concluded that the Town's "just take it" approach was ok.
In Town of Apex v. Rubin, the Court of Appeals affirmed the trial court's conclusion the taking lacked a public use. But it also expressed shock and dismay that the Town would try to get around that by a purported exercise of its quick take power, and make the lack of public use fait accompli. As the court held, "[t]his not the law, nor can it be consistent with our Federal and State Constitutions." Slip op. at 2. But the court of appeals didn't order the Town to remove the sewer line. Instead, it held that the proper claim is government trespass, and the proper remedy is ejectment.
No party was satisfied with the court of appeals' ruling, and the Town sought discretionary review (and Rubin conditionally cross-petitioned).
In this Order, the North Carolina Supreme Court agreed to take up the case (and in this Order, also granted Rubin's cross-petition).
Read more on the case from the Carolina Journal, "State Supreme Court will take up legal battle over disputed Apex sewer pipe."
Stay tuned, we're going to keep following along.
Order, Town of Apex v. Rubin, No. 20-305 (N.C. Oct. 18, 2023)