August 6, 2020

In 2016, a Superior Court judge found that Apex violated the North Carolina Constitution when it installed a sewer line across the property of a town homeowner, and now Apex must pay the price for its unconstitutional action by removing and relocating the line. That’s the argument outlined in a friend-of-the-court brief filed with the North Carolina Court of Appeals in Apex v. Rubin by the John Locke Foundation and the North Carolina Advocates for Justice.

The case revolves around Apex’s use of the “quick-take” eminent domain authority that permits certain municipalities to occupy and use property while condemnation proceedings are pending. Apex used the process in July 2015 to proceed with installing a sewer line across Beverly Rubin’s property without waiting for a legal decision in the case and without worrying about the consequences if the town lost in court. Ultimately, Apex lost, but it hasn’t accepted the courts’ decisions, and Rubin continues her legal battle to this day.

The friend-of-the-court brief supporting Rubin’s case was co-authored by attorneys representing the North Carolina Advocates for Justice and by Jon Guze, an attorney and the John Locke Foundation’s director of legal studies. “This is clearly an unconstitutional taking. If Apex prevails, the town’s behavior sets an alarming precedent for every North Carolinian,” Guze said. “Property owners will be stripped of the only protection they currently have against eminent domain abuse.”

North Carolina law requires that eminent domain be used only for a public use or benefit. Rubin presented evidence that the sewer line installed on her property was for the benefit of a private developer, not the public. Three courts – Wake Superior Court, the N.C. Court of Appeals, and the N.C. Supreme Court – have ruled in Rubin’s favor.

Despite having lost in court three times, Apex has not relented in its claim to the easement on Rubin’s land. Earlier this year, using a convoluted and technical argument, the town convinced Wake County Superior Court Judge Bryan Collins to override the three court decisions and issue a declaratory judgment upholding the town’s right to the easement.

“As we explain in our amicus brief, the Court of Appeals should reverse Judge Collins’ decision, affirm the original 2015 judgment in favor of Rubin and order the Town of Apex to remove the offending sewer line. We must put municipalities on notice that property rights are fundamental in North Carolina law and in a free society,” Guze said.


To interview Jon Guze, send an email to [email protected].
Or, call 919-828-3876 or 919-375-2021.

CLICK on the image below to watch Jon Guze discuss the case
with Carolina Journal Radio.