Town of Apex v. Beverly L. Rubin

The Town of Apex sought to condemn Rubin’s land for the purpose of installing a sewer line. The town commenced its condemnation action and began construction on the line, but the trial court held that there was no public purpose and therefore no right to take the property. The Court of Appeals affirmed this ruling, and the Supreme Court denied the town’s Petition for Discretionary Review. Thus, it is the established law of the case that the town had no right to take the land. While Rubin sought post-judgment relief in the original action, the town filed a separate action claiming it took the property by inverse condemnation, a doctrine which only exists for property owners to obtain fair compensation for condemnations, not as an alternative means for the government to take land. In any event, despite the prior ruling that there was no right of condemnation, Apex has simply refused to leave Rubin’s land.

This time the trial court ruled in favor of the town. On appeal, the Court of Appeals reversed and once again held there was no right to condemn, but stopped short of ordering Apex to vacate. Instead, the court indicated that Rubin could file a separate trespass action. The Supreme Court granted cross petitions for discretionary review.

NCAJ, which had previously filed a brief in the Court of Appeals, filed an amicus brief contending that the Court of Appeals was correct that the Town of Apex had no right to take Rubin’s land, especially through its creative and baseless contortions of the doctrine of inverse condemnation. When the previous efforts at condemnation failed, title to the property immediately vested with Rubin, such that the town had no rights in the property at all. Given that Rubin owns the land and the town has no right to be there, the town should be ordered to leave. The original action was never terminated, as Rubin sought post-judgment relief and the court retained in rem jurisdiction over the property itself, which was undisturbed by Apex filing a subsequent action. Thus, the town can be ordered to leave without yet another lawsuit being filed. Moreover, the town’s actions demonstrate a disturbing disrespect for the judiciary and the finality of its judgments, which should be addressed by the Court.  

UPDATE: The Supreme Court of North Carolina ruled that the land was in fact Ms. Rubin’s, free and clear of the Town’s claims. Specifically, the Court clarified that “inverse condemnation” is a claim for the benefit of property owners against the government to obtain compensation where land has been taken outside of the formal condemnation process. Thus, the Town’s claim must be dismissed. With no right to occupy Ms. Rubin’s land, the Town’s continued presence constitutes an ongoing trespass. The case was remanded to the trial court to consider the appropriate remedy for this trespass, whether it be a mandatory injunction or monetary compensation. In so remanding, the Supreme Court issued important guidance to the trial court. First, contrary to the Town’s position, the Supreme Court ruled that the trial court does in fact have the inherent authority to issue a mandatory injunction requiring the Town to vacate. If, however, the trial court instead requires only monetary compensation, that compensation should not be limited to the value of the land taken from Ms. Rubin in 2015. This is what the Town would have had to pay if it was successful in legally taking the property, and thus “cannot be a meaningful remedy for a constitutional violation.” Instead, the trial court should consider other factors such as the increase in property values over time and the cost that would have been required to run the sewer line outside of Ms. Rubin’s property.