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Unanimous Appeals Court gives property owner mixed news in fight with Apex

A property owner fighting with the town of Apex over an illegally installed sewer line got mixed news this morning from the N.C. Court of Appeals.

The unanimous three-judge appellate panel will not force Apex to remove the sewer line on Beverly Rubin’s property. But the court agrees that Rubin could file a new trespass claim against the town that could eventually lead to the sewer pipe’s removal.

It’s a case that involved a friend-of-the-court brief from the John Locke Foundation supporting Rubin.

Judge Lucy Inman explained the court’s objection to Apex’s arguments. The town contended that the only relief Rubin could expect in the case is payment for the violation of her property rights.

PlaintiffAppellee Town of Apex (“the Town”) asks this Court to uphold the Town’s continuing intrusion onto the land of a private citizen through a circuitous and strained application of North Carolina law on eminent domain and inverse condemnations. The Town’s position, in essence and when taken to its logical conclusion, is as follows: (1) if a municipality occupies and takes a person’s private property for no public purpose whatsoever, that private landowner can do nothing to physically recover her land or oust the municipality; (2) if the encroachment decreases the property’s value, then the landowner’s sole remedy is compensation by inverse condemnation; and (3) in all other instances, a landowner is powerless to recover or otherwise vindicate her constitutional rights. This is not the law, nor can it be consistent with our Federal and State Constitutions.

Despite Apex’s flawed legal arguments, Inman and her colleagues refused to grant Rubin’s request: a court order for the sewer line to be removed.

We agree with Ms. Rubin that mandatory injunctive relief may be available to her, but hold that it is not available in the direct condemnation action that was taken to final judgment without a request for or adjudication concerning the availability of injunctive relief. Instead, she may pursue mandatory injunctive relief against the Town to remedy its continuing encroachment through a claim for trespass.

In other words, Rubin would need to pursue another legal case if she still wants to have the sewer pipe removed.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...