Here's the latest in a case we've been following (and in which we filed an amicus brief in favor of the property owner).
Yesterday, the North Carolina Supreme Court heard oral arguments in Town of Apex v. Rubin. Here's a link to the recording (YouTube prevents us from embedding it, sorry).
This is a somewhat unusual case. The Town of Apex sought to take an easement across Rubin's land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town's development approvals for his proposed residential subdivisions.
While Rubin's public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public use requirement. (We say "public use requirement" because Rubin's objections were both under the U.S. Constitution's Public Use Clause, as well as the North Carolina Constitution, which, as you may recall, does not contain an express takings clause. But North Carolina has long recognized that the public use and just compensation limitations on eminent domain power govern, under the N.C. Constitution's "Law of the Land" Clause.) More details in our earlier post on the case.
So here's the situation: the Town is now illegally occupying Rubin's property. Now what? The Town argued it was fait accompli -- all you can do is sue us for just compensation in an inverse action. Or maybe you can sue us in a common law tort trespass action to get us off your property by way of separately seeking a writ of ejectment, or an injunction. (Rubin hadn't done either of these.) She argued that she didn't need to do that, and the court in the eminent domain action had all it needed to order the Town to get off her land.
In Town of Apex v. Rubin, No. COA20-403 (May 4, 2021), the North Carolina Court of Appeals was horrified by the Town's actions. The three-judge panel held, "[t]his is not the law, nor can it be consistent with our Federal and State Constitutions[,]" "[t]he Town’s argument is not supported by the facts or the law[,]" and "the 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," and accepting the Town's arguments would, "open the door to numerous constitutional harms[.]"
All good, right? See ya later, Town of Apex?
Not so fast. The court also concluded that although the Town grossly exceeded its powers and violated Rubin's rights, Rubin had not sought the proper remedy, and in order to get the Town off her property, she needs to sue it in trespass (and win).
The North Carolina Supreme Court granted review.
Check out the arguments. As one Justice pointed out, this is a case of how to "unring the bell." What remedies are available, if any? The Town acknowledges that for every wrong there must be a remedy, but argues that the legislature provided a remedy (injunction) but Rubin did not avail herself of that remedy, so any negative consequences are on her. Rubin, on the other hand, argues that when there's a violation of constitutional rights, there must be a remedy.
As our amicus brief argued, we believe the court in the eminent domain action has all the power it needs to enforce constitutional rights.
Now we wait.
