FILE - North Carolina state flag

The North Carolina state flag flies.

(The Center Square) – An Apex homeowner's five-year dispute with the town continues despite several courts ruling the town violated the North Carolina constitution by installing a sewer line on the resident's property.

Apex used North Carolina's eminent domain law, which allows government to take private land for public use, to defend the decision. The Wake County Superior Court ruled against the move in 2016 because the sewer system profited a private developer.

Local advocates now have called on the court to maintain the ruling after a new county superior judge ruled in Apex's favor despite higher courts' decisions to protect the property owner's rights.

"This is clearly an unconstitutional taking. If Apex prevails, the town's behavior sets an alarming precedent for every North Carolinian," said Jon Guze, the John Locke Foundation's director of legal studies. "Property owners will be stripped of the only protection they currently have against eminent domain abuse."

North Carolina Advocates for Justice (NCAJ) and the John Locke Foundation have filed a legal brief in support of the homeowner Beverly Rubin's appeal of the court's 2020 ruling to allow the sewer easement.

Apex officials did not respond to requests for comment.

In 2012 and 2013, Bradley Zadell purchased two plots of vacant land next to Rubin's home, but the property did not have a sewer, according to court documents.

Zadell offered to buy Rubin's property or get permission to run the sewer line. When Rubin refused, Zadell signed an agreement with Apex, in which officials agreed to use their eminent domain power to acquire a sewer easement across the land in exchange for compensation, court documents said. 

In 2015, the town filed to get access to Rubin's property under its "quick take action" powers. It allows certain municipalities and the Department of Transportation to start construction on the land while the court reviews the action.

Apex continued to build the sewer amid Rubin's opposition and allowed other residents to use it, according to court documents.

Before the ruling, Zadell sold the property and made a $2.5 million profit, court documents said.

After the trial court ruled in favor of Rubin in 2016, she went through several court proceedings and mediation to get the sewer line removed.

The North Carolina Court of Appeals and North Carolina Supreme Court upheld that the town's possession of the land was unconstitutional.

Apex, however, asked a Wake County Superior Court in 2019 to review the decision under the argument of its quick take powers. The judge struck down the 2016 ruling and blocked Rubin from removing the easement in January.

Rubin since has filed an appeal to the trial court's ruling.

Advocates argue the court's decision to sustain the sewer line opens the door for government abuse of power.

"Allowed to stand, Apex's actions offer a blueprint for government to circumvent constitutional rights to acquire private property when it otherwise lacks authority to do so," John Locke Foundation and NCAJ attorneys told the court of appeals.

Staff Reporter

Nyamekye Daniel has been a journalist for five years. She was the managing editor for the South Florida Media Network and a staff writer for The Miami Times. Daniel's work has also appeared in the Sun-Sentinel, Miami Herald and The New York Times.