The Taking of Private Property for a Private Purpose
The North Carolina Supreme Court has issued a landmark ruling, confirming that a government entity cannot take private property for a private purpose, even if it offers compensation.
The opinion, delivered Friday by Justice Allison Riggs, addresses the case of Town of Apex v. Beverly L. Rubin, consolidated from two separate Court of Appeals decisions. The court’s decision affirms a fundamental constitutional principle: the power of eminent domain is strictly limited to public use.
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The opinion addresses two major legal questions:
Does title to property revest in the landowner if a government entity takes the property for a private purpose? The court unequivocally held that it does. The court reasoned that to decide otherwise would render the Takings Clause of the North Carolina Constitution meaningless, allowing a government entity to unlawfully seize property, then simply keep it by claiming an “inverse condemnation” and paying compensation as if the taking were lawful.
May a trial court order a mandatory injunction to restore the property to its original condition even if the landowner didn’t originally request that specific relief in the pleadings? The court ruled that trial courts have the inherent authority to fashion an appropriate remedy, including a mandatory injunction. This authority, however, must be exercised by weighing the equities, hardships, and the interests of the public and third parties.
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The Background: Apex vs. Rubin
The case centers on a dispute between the Town of Apex and property owner Beverly L. Rubin. In 2012, a private real estate developer, Bradley Zadell, began acquiring land near Ms. Rubin’s property to build a subdivision. To make his development viable, Zadell needed to connect to the town’s sewer system. After Ms. Rubin and other landowners refused to grant him an easement across their land, Zadell approached the Town of Apex.
In a 3-2 vote, the Town Council approved a resolution to use its eminent domain power to take a 40-foot-wide sewer easement across Ms. Rubin’s land. The court found that this action was taken to benefit a private developer, noting that Zadell had agreed to pay all of the town’s legal costs and fees for the condemnation. The sale of Zadell’s property, for a profit of nearly $2.5 million, was even conditioned on the town securing the easement.
Despite Ms. Rubin’s immediate challenge to the condemnation as being for a private purpose, the town proceeded to install the sewer line on her property just two weeks after she filed her response. The town used a boring method, installing the pipe underground to avoid visible construction activity on her property.
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The case became a decade-long procedural battle. A trial court initially ruled in 2016 that the town’s taking was for a private purpose and was “null and void.” The town’s subsequent appeal of that decision was dismissed as untimely, making the ruling the official law of the case.
However, since the sewer line was already installed, the town argued it had acquired an easement by “inverse condemnation” and that Ms. Rubin’s only remedy was monetary compensation. The town even filed a second lawsuit against her seeking a declaratory judgment to this effect.
The North Carolina Supreme Court rejected the town’s arguments. It vacated the second lawsuit, ruling it was an improper attempt to relitigate issues that were—or should have been—settled in the original case. The court confirmed that because the original taking was unlawful, title to the property remained with Ms. Rubin. The town’s continued occupation of her land is, therefore, a continuing trespass.
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The case has now been remanded back to the trial court to determine the appropriate remedy for the continuing trespass. The Supreme Court has given the trial court broad discretion to weigh the public interest—including the 50 homeowners who now rely on the sewer line—against the constitutional rights of Ms. Rubin.
The trial court can consider a number of options, including:
- Monetary damages, but the court was clear this should not be limited to the original value of the easement. Instead, the damages should reflect the harm caused by the constitutional violation and could even include what it would have cost the developer to use an alternative sewer route.
- Mandatory injunctive relief, which could require the town to install an alternative sewer line or pumping station, then remove the current one from Ms. Rubin’s property.
This decision serves as a powerful reminder to government entities that their power to seize private property is not absolute and is subject to strict constitutional limitations. It also reinforces the judiciary’s role in protecting a citizen’s fundamental property rights.
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