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Town of Beech Mountain v. Rigsbee

2026-08-19

Summary

Holding. The appellate court reversed the trial court's judgment, concluding that the Town did not effectuate a compensable taking because it reasonably exercised its police power in conducting necessary infrastructure repairs that temporarily interfered with but did not eliminate property access or use, and therefore the Town's motion for a declaration that no compensable taking occurred should be granted.

The Town of Beech Mountain conducted necessary water and sewer line repairs and infrastructure upgrades across a vacation community spanning six months during the off-season, restricting property access and temporarily cutting utility services to Defendant's rental property. The trial court found that the Town had taken Defendant's property and awarded him compensation for lost rental income. The Town appealed, arguing no taking occurred because it maintained alternative (albeit less convenient) access through police escort and because its actions constituted a lawful exercise of police power rather than eminent domain.

The appellate court agreed with the Town. It held that although the temporary disruption interfered with property use, the Town did not effectuate a compensable taking because no physical intrusion occurred, direct access was preserved through police escort, and the Town's conduct represented a reasonable exercise of police power. The court emphasized that the Town scheduled the work during the off-season to minimize disruption, had a legal duty to maintain the infrastructure, and balanced the health and safety benefits against temporary inconvenience to residents. The court also rejected the defendant's cross-appeal regarding attorney-client privilege over the town's closed session meeting minutes, finding it did not present a substantial right for immediate review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether temporary restrictions on property access and utility services during infrastructure repairs constitute a compensable taking under eminent domain or a lawful exercise of police power
  • Whether a governmental entity's failure to physically intrude upon or permanently eliminate access to property prevents a finding of taking
  • Whether scheduling public infrastructure work during off-season and maintaining alternative access mitigates government interference to support police power rather than compensable taking

Procedural posture

The Town appealed an interlocutory order denying its motion for declaratory judgment and granting the defendant's motion for judgment on the pleadings regarding a taking claim, while the defendant cross-appealed a protective order shielding the town's privileged closed session meeting minutes from discovery.

Authorities cited

Opinion

majority opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-742

Filed 19 August 2026

Avery County, No. 24CVS000075-050

TOWN OF BEECH MOUNTAIN, a

North Carolina Municipal Corporation, Plaintiff,

v.

MARK B. RIGSBEE and CAROL ANN WILLIAMS, Defendants.

Appeal by Plaintiff from order entered 6 February 2025 by Judge Joseph N.

Crosswhite in Avery County Superior Court. Heard in the Court of Appeals 21 April

2026.

Poyner Spruill LLP, by N. Cosmo Zinkow, Andrew H. Erteschik, and Clare W.

Magee; Miller & Johnson, PLLC, by Nathan A. Miller; and Eggers, Eggers,

Eggers & Eggers, PLLC, by Stacy C. Eggers IV, for Plaintiff-Appellant.

The Odom Firm, PLLC, by Thomas L. Odom Jr., for Defendant-CrossAppellant.

CARPENTER, Judge.

The Town of Beech Mountain (the “Town”) appeals and Mark B. Rigsbee

(“Defendant”) cross-appeals from an order entered 6 February 2025.1 In the order,

the trial court denied the Town’s motion for declaratory judgment, granted

Defendant’s motion for judgment on the pleadings, granted the Town’s motion for a

protective order, and denied Defendant’s motion to compel. On appeal, the Town

1 Defendant Williams passed away and was voluntarily dismissed on 9 August 2024.

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argues that the trial court erred by concluding that a taking had occurred. On crossappeal, Defendant, by way of petition for writ of certiorari (“PWC”), argues that the

trial court erred by finding that the Town’s meeting minutes from closed sessions

were protected by attorney-client privilege and thus not discoverable. After careful

review, we reverse.

I. Factual & Procedural Background

This dispute arises from the Town’s handling of a project to improve public

infrastructure in a skiing community with seasonal renters, limiting the habitability

of and landowners’ access to their properties for a six-month period. On 1 April 2024,

the Town filed a complaint seeking a declaration that no taking had occurred or,

alternatively, a determination that the sum of $1,000 it offered to residents, including

Defendant, was just compensation for the taking. On 23 December 2024, Defendant

requested documents related to the closed sessions of the Town Council and afterward

filed a motion to compel. Defendant also filed a motion to dismiss the request for a

declaratory judgment and a motion for judgment on the pleadings. On 22 January

2025, the trial court conducted a hearing on the motions. Evidence tended to show

the following.

The Skiloft Community, a vacation destination for seasonal skiing, was

developed before the establishment of the Town. Perched on an elevated slope, Skiloft

properties are connected by a “single steep and winding road which dead ends . . .

pos[ing] particular difficulties in maintenance and installation of infrastructure, due

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to the topography and density of the land.” The Town serviced the water and sewer

systems, while private companies provided electricity, phone, and internet services.

Because of its configuration, the Skiloft Community was facing “difficulty in snow

removal, troubles in maintaining public utilities such as fire protection, crumbling

asphalt, failing electrical service, and failing telephone and internet lines.”

In 2023, instead of a piecemeal, protracted repair process, the Town decided to

make all necessary infrastructure repairs and improvements during a six-month

period outside of ski season. The project included replacing aging water and sewer

lines under the roadway, replacing aging electrical and communication lines under

the roadway, improving storm water management within the roadway, and repaving

two roads. The Town filed a memorandum of action stating its intent “to acquire by

condemnation a temporary construction easement in over and through” Defendant’s

property.

The Town also approached landowners in the Skiloft Community, offering

them $1,000 each as just compensation or risk being assessed for a portion of the

project, which could cost up to $90,000. Owners of all but three properties agreed

with the Town’s plan and accepted the $1,000 compensation in exchange for the

owners waiving their potential takings claims. Defendant, believing that the offer

was “threatening,” instead answered the Town’s declaratory judgment with a request

for just compensation.

From April through September 2024, the Town repaired and upgraded local

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infrastructure. “Residents . . . could request transportation to their properties

through the Beech Mountain Police Department.” There were also periods of time

when the neighborhood lost access to running water, sewer, and electricity. The

Town, however, never physically entered Defendant’s property.

The Town Council conducted closed session meetings with its attorney to

discuss the project, including proposed offers of $1,000 for each resident and potential

exposure to liability. Defendant’s counsel requested production of the closed session

meeting minutes, but the Town invoked attorney-client privilege. Defendant filed a

motion to compel.

In its order entered 28 January 2025, the trial court found that:

23. . . . [T]here is no question that the [Town] acted within

its statutory authority to conduct the infrastructural

repairs needed for the Skiloft Community. However, the

Defendants have correctly pointed out that the [Town]

implemented a temporary taking against the properties

owned by the Defendants.

25. . . . While using the Police Department’s services to

access one’s property would be less convenient, this alone

would not give rise to compensation being owed to the

Defendants.

26. . . . While no tenants were renting from the

Defendants[] at the time who could have provided written

notification to the Defendants regarding lack of access to

utilities, it is reasonable that the Defendants’ properties

could not be rented during the [Town]’s infrastructural

repairs because the properties did not have access to

electrical, plumbing, sanitary, or other facilities and

appliances as required by law.

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33. Upon review of the closed session minutes provided to

the Court by the [Town], this Court determines that

releasing the closed session minutes in full or in part would

violate the protected attorney-client privilege afforded the

[Town.]

The trial court held that a temporary taking occurred and that Defendant should

receive just compensation for “the lost rental value” of his property. It denied the

Town’s motion for declaratory judgment, granted Defendant’s motion for judgment

on the pleadings, denied Defendant’s motion to compel, and granted the Town’s

motion for a protective order. The issue of damages remains pending at the trial

court.

On 20 February 2025, the Town timely filed a notice of appeal. The parties

filed a joint motion to stay pending appeal, which the trial court granted on 3 March

2025. On 3 March 2025, Defendant filed an untimely notice of cross-appeal. On 13

November 2025, the Town filed a motion to dismiss Defendant’s cross-appeal,

asserting that it does not affect a substantial right. On 10 December 2025, Defendant

filed a PWC.

II. Jurisdiction

As an initial matter, we must determine whether we have jurisdiction to

review the Town’s appeal and Defendant’s cross-appeal. The trial court’s order is

interlocutory because the issue of damages remains open. See Veazey v. City of

Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An interlocutory order is one

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made during the pendency of an action, which does not dispose of the case, but leaves

it for further action by the trial court in order to settle and determine the entire

controversy.”). The Town argues its appeal affects a substantial right because

decisions regarding a taking must be immediately appealed. Defendant asserts that

its cross appeal affects a substantial right because determinations as to attorneyclient privilege are immediately appealable.

“In most instances, a party has ‘no right of immediate appeal from

interlocutory orders and judgments.’ ” Bartels v. Franklin Operations, LLC, 288 N.C.

App. 193, 195, 885 S.E.2d 357, 359 (2023) (quoting Goldston v. Am. Motors Corp., 326

N.C. 723, 725, 392 S.E.2d 735, 736 (1990)). Contrary to the general rule, interlocutory

orders are immediately appealable when they affect a substantial right. Id. at 195,

57 S.E.2d at 359 (citing Smith v. Polsky, 251 N.C. App. 589, 594–95, 796 S.E.2d 354,

358–59 (2017)). “A substantial right is a legal right affecting or involving a matter of

substance as distinguished from matters of form; a right materially affecting those

interests which a [party] is entitled to have preserved and protected by law: a

material right.” Pentecostal Pilgrims & Strangers Corp. v. Connor, 202 N.C. App.

128, 132, 688 S.E.2d 81, 84 (2010) (internal quotation marks and citation omitted).

A. Town’s Appeal

Issues of condemnation “concerning title and area taken are ‘vital preliminary

issues[,]’ ” Dep’t of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 709 (1999)

(quoting N.C. State Highway Comm. v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784

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(1967)), that “affect a party’s substantial right and thus must be immediately

appealed . . . ,” Dep’t of Transp. v. BB & R, LLC, 242 N.C. App. 11, 14, 775 S.E.2d 8,

12 (2015) (citing Rowe, 351 N.C. at 176, 521 S.E.2d at 709). This is because “[i]t would

be an act of futility and injurious to the interests of the [condemnor] to otherwise

compel it to proceed through trial on the issue of damages if the trial court’s initial

determination that a taking had occurred was in error.” Concrete Mach. Co. v. City

of Hickory, 134 N.C. App. 91, 96, 517 S.E.2d 155, 158 (1999). Indeed, “an immediate

appeal following a condemnation hearing [is] mandatory . . . .” Rowe, 351 N.C. at 176,

521 S.E.2d at 710.

Here, the Town’s appeal affects a substantial right. See Pentecostal, 202 N.C.

App. at 132, 699 S.E.2d at 84. Because the Town’s appeal concerns an alleged

governmental taking, it would be futile for the trial court to proceed to the issue of

damages without this Court first resolving whether a taking occurred. See Concrete

Mach. Co., 134 N.C. App. at 96, 517 S.E.2d at 158. Indeed, the Town must

immediately appeal this issue. See BB & R, LLC, 242 N.C. App. at 14, 775 S.E.2d at

12. Accordingly, we review the Town’s appeal. See id. at 14, 775 S.E.2d at 12 (citation

omitted).

B. Defendant’s Cross-Appeal

“An order compelling discovery is interlocutory in nature and is usually not

immediately appealable because such orders generally do not affect a substantial

right.” Sessions v. Sloane, 248 N.C. App. 370, 380, 789 S.E.2d 844, 853 (2016) (citing

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Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999)). Interlocutory

orders denying a motion to compel, however, can affect a substantial right “(1) ‘if the

information desired is highly material to a determination of the critical question to

be resolved in the case,’ and (2) if ‘the desired discovery would not have delayed trial

or have caused the opposing party any unreasonable annoyance, embarrassment,

oppression or undue burden or expense.’ ” James v. Bledsoe, 198 N.C. App. 339, 345,

679 S.E.2d 494, 498 (2009) (quoting Dworsky v. Travelers Ins. Co., 49 N.C. App. 446,

447–48, 271 S.E.2d 522, 523 (1980)).

When “a party asserts a statutory privilege which directly relates to the matter

to be disclosed under an interlocutory discovery order, and the assertion of such

privilege is not otherwise frivolous or insubstantial, the challenged order affects a

substantial right . . . .” Sharpe, 351 N.C. at 166, 522 S.E.2d 577, 581. This rule,

however, “gives no support to [a party’s] contention . . . that the trial court’s

recognition of [the adverse party’s] assertion of a statutory privilege affects a

substantial right of [a party].” James, 198 N.C. App. at 343, 679 S.E.2d at 497

(emphasis in original).

Here, Defendant’s cross-appeal does not affect a substantial right. See

Pentecostal, 202 N.C. App. at 132, 699 S.E.2d at 84. Defendant is seeking to discover,

not protect, the Town’s allegedly privileged information. See James, 198 N.C. App.

at 343, 679 S.E.2d at 497. Moreover, the trial court decided to protect, not compel

disclosure of, the closed session meeting minutes, see Sharpe, 351 N.C. at 163–65, 522

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S.E.2d at 580–81, which means that the right will not be lost absent immediate

appellate review, see Sessions, 248 N.C. App. at 380, 789 S.E.2d at 853. Our review

of the closed session meeting minutes further supports our determination that

Defendant’s cross-appeal does not affect a substantial right. See Sharpe, 351 N.C. at

163–65, 522 S.E.2d at 580–81. Defendant’s cross-appeal, therefore, is not

immediately appealable. See Sessions, 248 N.C. App. at 380, 789 S.E.2d at 853.

Next, we turn to Defendant’s PWC. This Court in its discretion may issue a

writ of certiorari to aid our jurisdiction. See N.C. Gen. Stat. § 7A-32(c) (2025). Issuing

a writ of certiorari, however, is an extraordinary measure. See Cryan v. Nat’l Council

of YMCAs, 384 N.C. 569, 572, 887 S.E.2d 848, 851 (2023) (citing Button v. Level Four

Orthotics & Prosthetics, Inc., 380 N.C. 459, 465, 869 S.E.2d 257 (2022)).

Accordingly, a petitioner must satisfy a two-factor test. Id. at 572, 887 S.E.2d

at 851. “First, a writ of certiorari should issue only if the petitioner can show ‘merit

or that error was probably committed below.’ ” Id. at 572, 887 S.E.2d at 851 (first

quoting State v. Ricks, 378 N.C. 737, 741, 862 S.E.2d 835, 839 (2021); and then State

v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)). “Second, a writ of certiorari

should issue only if there are ‘extraordinary circumstances’ to justify it.” Id. at 572–

73, 887 S.E.2d at 851 (quoting Moore v. Moody, 304 N.C. 719, 720, 285 S.E.2d 811,

812 (1982)). “There is no fixed list of ‘extraordinary circumstances’ that warrant

certiorari review, but this factor generally requires a showing of substantial harm,

considerable waste of judicial resources, or ‘wide-reaching issues of justice and liberty

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at stake.’ ” Id. at 573, 887 S.E.2d at 851 (quoting Doe v. City of Charlotte, 273 N.C.

App. 10, 23, 848 S.E.2d 1 (2020)).

Here, we decline to issue a writ of certiorari. See N.C. Gen. Stat. § 7A-32(c).

Defendant has not met his burden in showing that the trial court probably erred

because the closed session meeting minutes of the Town Council were privileged. See

Cryan, 384 N.C. at 572, 887 S.E.2d at 851. Extraordinary circumstances are also

absent here. Id. at 573, 887 S.E.2d at 851. For these reasons and in light of our

resolution of the Town’s appeal, we decline to invoke Rule 2. See State v. Hart, 361

N.C. 309, 315–16, 644 S.E.2d 201, 205 (2007). Accordingly, we deny Defendant’s PWC

and grant the Town’s motion to dismiss the cross-appeal.

III. Issue

The issue is whether the trial court erred by concluding that a compensable

taking had occurred.

IV. Analysis

On appeal, the Town challenges the trial court’s conclusion that a taking

occurred for two reasons: (1) the Town did not eliminate all access to Defendant’s

property; and (2) temporarily cutting off water and sewer access was a reasonable

exercise of the Town’s police powers, not a compensable taking. We agree.

A. Standard of Review

“[W]hen the trial court sits without a jury, the standard of review on appeal is

whether there was competent evidence to support the trial court’s findings of fact and

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whether the conclusions of law were proper in light of such facts.” Anthony Marano

Co. v. Jones, 165 N.C. App. 266, 267–68, 598 S.E.2d 393, 395 (2004) (citing Chem.

Realty Corp. v. Home Fed. Sav. & Loan Ass’n, 84 N.C. App. 27, 37, 351 S.E.2d 786,

793 (1987)). “Unchallenged findings of fact are . . . binding on appeal.” In re

Schiphof, 192 N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008) (citing Keeter v. Town

of Lake Lure, 264 N.C. 252, 257, 141 S.E.2d 634, 638 (1965)).

“The trial court’s conclusions of law are reviewed de novo . . . .” Stikeleather

Realty & Invs. Co. v. Broadway, 241 N.C. App. 152, 160, 772 S.E.2d 107, 113 (2015)

(citation omitted). “ ‘Under a de novo review, the court considers the matter anew

and freely substitutes its own judgment’ for that of the lower tribunal.” State v.

Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of

Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

B. Eminent Domain

“[T]he power of eminent domain[] is one of the prerogatives of a sovereign

state. . . . Its exercise, however, is limited by the constitutional requirements of due

process and payment of just compensation for property condemned.” Dep’t of Transp.

v. M.M. Fowler, Inc., 361 N.C. 1, 4, 637 S.E.2d 888, 889 (2006) (quoting State v. Core

Banks Club Props., Inc., 275 N.C. 328, 334, 167 S.E.2d 385, 388 (1969)). Indeed, “the

fundamental right to just compensation [is] so grounded in natural law and justice

that it is part of the fundamental law of this State[] and imposes upon a governmental

agency taking private property for public use a correlative duty to make just

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compensation . . . .” Beroth Oil Co. v. N.C. Dep’t of Transp., 367 N.C. 333, 340–41,

757 S.E.2d 466, 472–73 (2014) (quoting Long v. City of Charlotte, 306 N.C. 187, 196,

293 S.E.2d 101, 107 (1982) (superseded on other grounds by statute)).

A taking is an

entering upon private property for more than a momentary

period, and under warrant or color of legal authority,

devoting it to a public use, or otherwise informally

appropriating or injuriously affecting it in such a way as

substantially to oust the owner and deprive him of all

beneficial employment thereof.

Long, 306 N.C. at199, 293 S.E.2d at 109 (quoting Penn v. Coastal Corp., 231 N.C. 481,

484, 57 S.E.2d 817, 819 (1950)). “A ‘temporary’ taking, which ‘den[ies] a landowner

all use of his property’ for a finite period, is ‘no[] different in kind from [a] permanent

taking[] . . . .’ ” City of Charlotte v. Combs, 216 N.C. App. 258, 261, 719 S.E.2d 59, 62

(2011) (quoting First Eng. Evangelical Lutheran Church of Glendale v. L.A. Cnty.,

482 U.S. 304, 318, 107 S. Ct. 2378, 2388, 96 L. Ed. 2d 250, 266 (1987)).

“Determining if governmental action constitutes a taking depends upon

‘whether a particular act is an exercise of the police power [or] of the power of eminent

domain.’ ” Kirby v. N.C. Dep’t of Transp., 368 N.C. 847, 854, 786 S.E.2d 919, 924

(2016) (quoting Barnes v. N.C. State Highway Comm’n, 257 N.C. 507, 514, 126 S.E.2d

732, 737–38 (1962)). This analysis “requires ‘ad hoc, factual inquiries into the

circumstances of each particular case[.]’ ” Beroth Oil Co., 367 N.C. at 342, 757 S.E.2d

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at 473 (quoting Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224, 106 S. Ct.

1018, 1026, 89 L. Ed. 2d 166, 178–79 (1986)).

“Under the police power, the government regulates property to prevent injury

to the public.” Kirby, 368 N.C. at 854, 786 S.E.2d at 924 (emphasis and citations

omitted). This power “must be ‘enacted in good faith[] and ha[ve] appropriate and

direct connection with that protection to life, health, and property which each [s]tate

owes to her citizens.’ ” Id. at 854, 786 S.E.2d at 924 (quoting City of Durham v. Eno

Cotton Mills, 141 N.C. 615, 642, 54 S.E. 453, 462 (1906)). A lawful exercise of police

power is not a taking, Responsible Citizens in Opposition to Flood Plain Ordinance v.

City of Asheville, 308 N.C. 255, 265, 302 S.E.2d 204, 211 (1983), but “[a]n exercise of

police power outside these bounds may result in a taking[,]” Kirby, 368 N.C. at 854,

786 S.E.2d at 924 (citing Responsible Citizens, 308 N.C. at 263, 302 S.E.2d at 209).

“A taking effectuated by eminent domain does not require ‘an actual

occupation of the land,’ but ‘need only be a substantial interference with elemental

rights growing out of the ownership of the property.’ ” Id. at 855, 786 S.E.2d at 925

(quoting Long, 306 N.C. at 198–99, 293 S.E.2d at 109). A taking can occur through a

construction easement that physically intrudes on another’s land, restricts access to

the land, or limits a landowner’s use and enjoyment. See Dep’t of Transp. v. Jay

Butmataji, LLC, 260 N.C. App. 516, 521, 818 S.E.2d 171, 176 (2018).

C. Nature of Intrusion

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“ ‘[A] ‘taking’ may more readily be found when the interference with property

can be characterized as a physical invasion by government than when interference

arises from some public program adjusting the benefits and burdens of economic life

to promote the common good.’ ” Stillings v. City of Winston-Salem, 311 N.C. 689, 697,

319 S.E.2d 233, 239 (1984) (quoting Penn Cent. Transp. Co. v. N.Y.C., 438 U.S. 104,

124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 648 (1978)). Thus, “[i]f in exercising its

power to open or improve streets or to make drains or sewers [a

municipality] . . . commit[s] a trespass or take[s] possession of private property

without complying with the charter or statute, the [municipality] is liable . . . .” Tate

v. City of Greensborough, 114 N.C. 392, 416, 19 S.E. 767, 774 (1894) (citation omitted).

For example, a taking may occur if a city’s decision to elevate water levels in a lake

encroaches on and submerges a landowner’s property. See Wilkie v. City of Boiling

Spring Lakes, 370 N.C. 540, 540–42, 550, 552, 809 S.E.2d 853, 854–55, 860–62 (2018).

Here, the Town did not physically intrude on Defendant’s property. See

Stillings, 311 N.C. at 697, 319 S.E.2d at 239. Indeed, the Town never encroached on

Defendant’s land, see Wilkie, 370 N.C. at 542, 550–52, 809 S.E.2d at 854–55, 860–62,

despite its memorandum of action that stated its construction easement would permit

access “in over and through” Defendant’s property, see Tate, 114 N.C. at 416, 19 S.E.

at 774; Jay Butmataji, LLC, 260 N.C. App. at 521, 818 S.E.2d at 176. Rather, by

implementing a construction project along a public road, the Town only infringed on

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Defendant’s access, use and enjoyment of his property. See Stillings, 311 N.C. at 697,

319 S.E.2d at 239.

D. Access

“[T]he sovereign may restrict the right of entrance to reasonable and proper

points.” Nuckles, 271 N.C. at 21, 155 S.E.2d at 788 (quoting State Highway Comm’n

v. Raleigh Farmers Market, Inc., 263 N.C. 622, 625, 139 S.E.2d 904, 906 (1965)).

“But . . . when all direct access has been eliminated, there has been pro tanto a

taking; the availability and reasonableness of any other access go[] to the question of

damages and not to the question of liability for the denial of access.” Dep’t of Transp.

v. Harkey, 308 N.C. 148, 155, 301 S.E.2d 64, 69 (1983).

Here, the Town did not take Defendant’s property by restricting his and his

potential renters’ access. See Long, 306 N.C. at 199, 293 S.E.2d at 109; Nuckles, 271

N.C. at 21, 155 S.E.2d at 788. Defendant could still reach his property, albeit less

conveniently, by police escort. See Nuckles, 271 N.C. at 21, 155 S.E.2d at 788. Thus,

the Town did not eliminate direct access, and its actions did not constitute a taking.

See Harkey, 308 N.C. at 155, 301 S.E.2d at 69.

Moreover, the Town’s decision to temporarily limit Defendant’s access to his

property promoted the health and safety of landowners and renters alike. See Kirby,

368 N.C. at 854, 786 S.E.2d at 924. In doing so, the Town protected the public from

potential injury caused by fractured streets during construction and future injury

caused by failing infrastructure. See id. at 854, 786 S.E.2d at 924. The project’s

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limitation on Defendant’s access to his property, therefore, was a valid exercise of the

Town’s police power. See Responsible Citizens, 308 N.C. at 265, 302 S.E.2d at 211.

E. Use

“The term ‘property’ not only refers to ‘the thing possessed,’ but also includes

‘every aspect of right and interest capable of being enjoyed as such upon which it is

practicable to place a money value.’ ” Beroth Oil Co., 367 N.C. at 341, 757 S.E.2d at

473 (quoting Long, 306 N.C. at 201, 293 S.E.2d at 110). But “not every damage to

private property by the government is subject to compensation.” Stillings, 311 N.C.

at 698, 319 S.E.2d at 239. “[T]here must be a substantial interference with the use

and enjoyment of the land, not merely incidental damage, before a taking results.”

Long, 306 N.C. at 200, 293 S.E.2d at 110 (citation omitted). As such, the interference

must “reduce the market value of the property[.]” Id. at 200, 293 S.E.2d at 110.

Moreover, “ ‘[t]he establishment and maintenance of a sewer [and water]

system by a [town] is ordinarily regarded as an exercise of its police power.’ ”

Covington v. City of Rockingham, 266 N.C. 507, 512, 146 S.E.2d 420, 424 (1966)

(quoting Patterson v. City of Chattanooga, 192 Tenn. 267, 275, 241 S.W.2d 291, 294

(1951)). Indeed, municipalities that provide water services have a duty to provide

equal water services to consumers within city limits. See Fulghum v. Town of Selma,

238 N.C. 100, 105, 76 S.E.2d 368, 371 (1953). Yet, unreasonably failing to repair

those systems may result in liability for towns. See, e.g., Mosseller v. City of Asheville,

267 N.C. 104, 107, 147 S.E.2d 558, 561 (1966) (noting that a municipality can be held

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Opinion of the Court

liable for negligently failing to repair or cut off a water line); Lea Co. v. N.C. Bd. of

Transp., 308 N.C. 603, 616–18, 304 S.E.2d 164, 174–75 (1983) (concluding that a

governmental entity could be liable for failing to prevent a reasonably foreseeable

flood).

Under this particular set of facts, where the Town elected to proactively

conduct necessary water and sewer line repairs and infrastructure improvements

during the offseason in a manner that mitigated the disruption to affected residents,

it lawfully exercised its police power. See, e.g., Long, 306 N.C. at 200, 293 S.E.2d at

110 (The “social utility” of infrastructure projects, like airports, “must be balanced

against the inconvenience, annoyance, and aggravation to those in their vicinity.”);

Responsible Citizens, 308 N.C. at 265, 302 S.E.2d at 211 (governmental actions to

prevent flooding that affect landowners can be a valid exercise of police power).

Here, the Town’s decision to temporarily interrupt water and sewer services

did not constitute a compensable taking. See Long, 306 N.C. at 199, 293 S.E.2d at

109. The Town had a duty to maintain the water and sewer lines in good working

order for the health and safety of its residents and visitors. See Fulghum, 238 N.C.

at 105, 76 S.E.2d at 371; Kirby, 368 N.C. at 854, 786 S.E.2d at 924. In fact, it may

have been liable for damages had it not done so. See Lea Co., 308 N.C. at 616, 304

S.E.2d at 174.

Moreover, the Town minimized disruptions posed by necessary repairs of the

water and sewer lines to the extent possible by conducting the project over a six- 17 -TOWN OF BEECH MOUNTAIN V. RIGSBEE

Opinion of the Court

month period during the off-season. See Long, 306 N.C. at 200, 293 S.E.2d at 110.

This interference was minimal compared to the disruption that might have occurred

had the Town instituted a piecemeal construction plan, which would have taken

longer, impacting the skiing season and beyond. See id. at 200, 293 S.E.2d at 110.

Thus, the Town’s selection of the six-month project, notwithstanding its downsides,

was a reasonable and lawful exercise of its police powers. See Stillings, 311 N.C. at

697, 319 S.E.2d at 239.

Indeed, the Town had good reason to conduct the repairs to the roads and

utilities for the protection of the public, see Kirby, 368 N.C. at 854, 786 S.E.2d at 924,

despite the temporary disruption to Defendant’s use and enjoyment of his property,

see Long, 306 N.C. at 200, 293 S.E.2d at 110. By doing so efficiently and during the

off-season, the Town minimized its interference with Defendant’s property rights to

the extent possible. See id. at 200, 293 S.E.2d at 110; Stillings, 311 N.C. at 697, 319

S.E.2d at 239.

Under the specific facts of this case, see Beroth Oil Co., 367 N.C. at 342, 757

S.E.2d at 473, we hold the Town properly exercised its police power, despite

temporarily interfering with Defendant’s use of his property, see Responsible Citizens,

308 N.C. at 265, 302 S.E.2d at 211. The trial court, therefore, erred in concluding

that a compensable taking occurred. See Long, 306 N.C. at 199, 293 S.E.2d at 109.

V. Conclusion

In sum, we deny Defendant’s PWC and dismiss his cross-appeal because it does

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Opinion of the Court

not affect a substantial right. Because the Town’s interlocutory appeal does affect a

substantial right, we have jurisdiction to review it. After careful review, we conclude

that the trial court erred in finding that a compensable taking occurred because the

Town reasonably exercised its police powers by mitigating the disruption to property

owners and residents of a seasonal resort community through its six-month

implementation of a comprehensive infrastructure project during the off-season

without fully depriving residents of access or the use and enjoyment of their

properties. This short-term interference with access and use, which was mitigated to

the extent possible, produced a long-term gain that did not interfere with peak season

and was a reasonable and permissible exercise of the Town’s police powers.

While access limitations and utility interruptions impacted the off-season

rental value of Skiloft properties during the six-month project, alternatives would

have taken longer and likely cost the taxpayers more. Accordingly, the Town lawfully

exercised its police powers by proactively conducting necessary repairs and updates

to its public infrastructure, preventing injury to the public and enhancing the use and

enjoyment available to residents, guests, and renters alike. We therefore reverse and

remand with instructions to enter judgment for the Town on a declaration that no

compensable taking occurred.

REVERSED.

Judges WOOD and STADING concur.

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