NC Supreme Court ruling favors property owner in sewer line battle with Apex

The North Carolina Supreme Court issued a ruling Friday favoring a property owner in her decade-long battle with Apex over a disputed sewer line. Now a trial judge will determine how the town must compensate Beverly Rubin for illegally installing the line under her property.

Apex installed the sewer line in 2015 while pursuing a court order condemning the affected portion of Rubin’s property. The sewer line was designed to serve a 50-home subdivision.

Rubin fought the condemnation, and a judge ruled in October 2016 that the pipe had been installed for a private purpose: helping a developer turn a $2.5 million profit when selling a tract of land near Rubin’s property. The “private purpose judgment” faulted Apex for violating Rubin’s property rights.

For much of the past decade, Rubin and town officials have battled in court over how Apex must respond to the 2016 court decision.

“[T]here are two questions left for this Court to resolve given that the Private Purpose Judgment is law of the case,” Justice Allison Riggs wrote Friday. “The first question is who has title to the sewer easement: Ms. Rubin or Apex. The second question is what remedies are available for Apex’s intrusion onto Ms. Rubin’s property.”

“Ms. Rubin argues that she holds title to the property free of any easement in favor of Apex and requests a mandatory injunction requiring Apex to remove the sewer line from her property,” Riggs continued. “In contrast, Apex argues that because it installed the pipe before the trial court entered the Private Purpose Judgment, Apex has title to an easement across Ms. Rubin’s land and the only remedy available to Ms. Rubin is monetary damages.”

“Here, the trial court concluded that the land was taken for a private purpose and the appeals were exhausted without a different conclusion being reached; that decision is the law of the case,” Riggs explained.

“Because of this, the Private Purpose Judgment revested title to the easement in Ms. Rubin and Apex does not have title to a sewer easement across Ms. Rubin’s property,” the Supreme Court opinion continued. “Because Apex does not have the title to a sewer easement, a trial court has inherent authority to order monetary damages, mandatory injunctive relief, or other relief the court in its discretion deems proper for Apex’s continuing trespass on Ms. Rubin’s property.”

“Apex argues that because the determination that the taking was for a private purpose happened after Apex had already installed the pipe, Apex automatically gains title to the sewer easement by inverse condemnation. This ‘heads I win, tails you lose’ argument cannot be right,” Riggs wrote.

“Apex may not use the installation of the pipe to strip Ms. Rubin of her property rights,” Riggs added.

“In sum, we conclude that the trial court acted under a misapprehension of the law when it ruled that Apex retained ‘all easement rights in the property’ notwithstanding the Private Purpose Judgment,” the court opinion explained. “The Private Purpose Judgment revested title in the property to Ms. Rubin. Ms. Rubin thus owns the land free of any easement and the sewer line constitutes a continuing trespass on the part of Apex.”

Now “the remaining issue is whether Ms. Rubin may seek a mandatory injunction requiring Apex to remove the sewer line. We conclude that she may,” Riggs wrote. “However, we remand for a weighing of the equities by the trial court to determine whether a mandatory injunction or money damages is the proper remedy for this continuing trespass of the sewer pipe on Ms. Rubin’s land.”

The Supreme Court offered guidance for the trial court as the dispute moves forward.

“On remand, in weighing the equities, the trial court should consider whether Apex acted in good faith when it installed the sewer line notwithstanding Ms. Rubin’s notice of intent to challenge,” Riggs wrote. “The trial court should also consider the impact on the fifty homeowners that rely upon the sewer line.”

“The trial court is not precluded, for example, from considering whether, in ordering different mandatory injunctive relief, Apex should install a replacement sewer line or pumping station, then remove the offending sewer line, and pay Ms. Rubin a reasonable rental rate for the time period when the sewer line was on her property,” Riggs explained. “Likewise, the trial court is not precluded from determining that monetary damages are the least intrusive remedy.”

“But the trial court should take care to ensure that money damages do not merely give Ms. Rubin the value of the property taken from her in 2015,” Riggs warned. “Such a remedy would be what Apex would have paid had it been successful in the 2015 Direct Condemnation Action or the 2019 Inverse Condemnation Declaratory Judgment Action, had this taking been deemed constitutional.”

“Apex securing the line and paying what it wanted to pay in 2015 cannot be a meaningful remedy for a constitutional violation,” the court opinion explained.

Chief Justice Paul Newby wrote a concurring opinion explaining his concerns about how the case has moved through state courts over a decade.

“To be clear, this case is procedurally abnormal and should not serve as a model for future litigants involved in takings disputes,” Newby wrote. “In an ideal world, defendant would have sought relief from plaintiff’s unlawful incursion onto her property through a counterclaim in the direct condemnation action or her own independently commenced action after plaintiff’s appeal was exhausted. She did not.”

“Given that this matter has languished in the court system for over a decade, however, I agree with the decision to remand for further proceedings on defendant’s motion to enforce the judgment in the direct condemnation action to determine how to appropriately remedy plaintiff’s ongoing intrusion onto defendant’s property,” Newby added.

The chief justice faulted the trial judge’s decision not to take earlier action to address Apex’s property rights violation.

“[T]he majority accurately explains the many ways that the trial court misunderstood the law of takings, largely parroting the misstatements of law advanced by plaintiff,” Newby wrote. “And in determining whether the trial court abused its discretion when it denied defendant’s motion to enforce the judgment, these errors certainly cast doubt as to whether the trial court was soundly exercising its discretion. Should any doubt remain, however, the question is put to rest by the trial court’s decision to not invoke its inherent authority in this case.”

“[I]t appears that it was an abuse of discretion for the trial court to not invoke its inherent authority and decide how to remedy plaintiff’s ongoing incursion onto defendant’s property, including through injunctive relief,” he added.

The post NC Supreme Court ruling favors property owner in sewer line battle with Apex first appeared on Carolina Journal.

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