Town of Apex v. Rubin

Shiloh Daum

Shiloh Daum is an attorney with Sever-Storey, LLP, eminent domain lawyers representing landowners.

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Opinion Filed May 04, 2021
Attorney for the Case Matthew Nis Leerberg Kenneth C. Haywood Joan Davis
Amicus Brief Writers R. Susanne Todd Maisha M. Blakeney Shiloh Daum Jonathan D. Guze
Court NC Court of Appeals
Docket No. 20COA-304 & 20COA-305

The companion amicus briefs submitted to the Court of Appeals are for a pair of cases defending the constitutional mandate that condemnation must require a public use or benefit, and that condemnors cannot assert inverse condemnation as an offensive claim to take private property. The John Locke Foundation joined NCAJ on the briefs to support the arguments to preserve the fundamental rights of property owners.

NCAJ argued that: (1) A public use or benefit is an essential prerequisite to any taking of private property regardless of the statutory process; and (2) Condemnors cannot circumvent constitutional protections and take property via inverse condemnation when they lack authority to take by direct condemnation. The case presents a novel circumstance, since it is the first time a condemnor has tried to assert a taking via inverse condemnation, rather than use its statutory powers to take property by direct condemnation. It also could allow a condemnor a “second bite at the apple” and authorize a project that had been found to lack a public benefit, seemingly at odds with principles of res judicata. NCAJ argued that Apex’s position could abrogate the constitutional prerequisite of a public use or benefit, despite the fact that an earlier trial judge and appellate panel had explicitly found that Apex failed to meet this threshold test. Furthermore, the briefs argued that Apex turned the statutory scheme for condemnation inside out by using inverse condemnation, which is properly a remedy available only to landowners.