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.
TOWN OF BEECH MOUNTAIN V. RIGSBEE
Opinion of the Court
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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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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