Wake County Property Owner Challenges Eminent Domain Power | Beaufort County Now | Wake County property owner Beverly Rubin has been fighting a legal battle with the city of Apex for five years after the city used eminent domain to place a sewer line through her property. | john locke foundation, wake county, property owner, eminent domain power, july 31, 2020

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Wake County Property Owner Challenges Eminent Domain Power

Publisher's note: The author of this post is Brenee Goforth for the John Locke Foundation.

    Wake County property owner Beverly Rubin has been fighting a legal battle with the city of Apex for five years after the city used eminent domain to place a sewer line through her property. While this legal battle should have been over with a court decision in Ms. Rubin's favor, the city of Apex is not allowing her justice without a (excruciatingly long) fight. On Thursday, July 30, JLF's Jon Guze shared the facts of the case:

  • The town filed a Chapter 136 condemnation action seeking a sewer easement across Mr. Rubin's property on April 30, 2015. When it did so, the town estimated the compensation due to Ms. Rubin at $10,771. On July 7, 2015, Ms. Rubin filed an answer in which she argued that, far from being for public use or benefit, the taking was actually for the financial benefit of a private developer named Bradley F. Zadell...

    On October 18, 2016, a Wake County Superior court judge agreed with Rubin. Guze writes:

  • Ms. Rubin presented evidence which she claimed showed the following:
    • Zadell had bought up land surrounding her property in the expectation that he would be able to sell it at a profit after obtaining a sewer easement from her.
    • When Ms. Rubin steadfastly refused to sell him the easement he wanted and eventually asked him to stop pestering her, Mr. Zadell entered into closed-door negotiations with the Town of Apex and successfully "pressured" the town into signing an agreement under which the town would use its condemnation power to obtain the sewer easement, and Zadell would reimburse the town for all of its costs and expenses.
    • By the time of the hearing, Mr. Zadell had already sold the property he'd acquired adjacent to Mr. Rubin's for a $2.5 million profit.

    Guze writes:

  • Judge O'Neal found that the town's use of eminent domain violated both the North Carolina and United States constitutions because "The paramount reason for the taking [was] for a private interest and the public's interest was merely incidental." She also held that the town's claim to Ms. Rubin's property was "null and void."

    That very well could have been where this case ended. However, the city of Apex has filed multiple failed appeals and, most recently, filed a new lawsuit asking for a declaratory judgment against Ms. Rubin.

    In an unusual turn of events, the court granted Apex's declaratory judgment. Guze explains:

  • The town claimed that, because it had installed the sewer line while its condemnation action was pending, its title to the easement vested on the date it installed the sewer, and, as a result, Ms. Rubin's sole remedy is just compensation. It's a convoluted argument and not a very good one. Nevertheless, when Superior Court Judge Bryan Collins heard Apex's complaint (Judge O'Neal having retired), he took the unusual step of effectively reversing his own court's prior decision and rendered judgment in favor of the town.

    The John Locke Foundation in collaboration with the North Carolina Advocates for Justice has filed an amicus brief in support of Beverly Rubin.

    You can read Guze's full research brief explaining the case HERE. You can read our amicus brief HERE.


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