Updated: October 10, 2008 at 09:47 amIt's Your Life. Read All About It. Search


Print this Page | Email to a friend | Email the News Editor

Pinewild Lawsuit Tossed Out

BY JOHN CHAPPELL: STAFF WRITER

A federal judge has dismissed a lawsuit filed by some Pinewild Country Club residents trying to block the involuntary annexation by the village of Pinehurst.

The suit had asked a federal court to declare that the annexation of Pinewild would be a "taking of private property for public use" that requires compensation. It is too soon to make such a claim, a federal judge ruled Thursday.

"Pinewild is a fully privatized, gated, common-interest community in which all property within its boundaries is privately owned," the plaintiffs said in one brief filed in the case. "The village of Pinehurst has enacted an ordinance to forcibly annex the Pinewild community and all of its private property against the will of its property owners.

"Upon completion of the annexation process, plaintiff property owners will lose valuable property, privacy and contract rights, sustain an estimated $54 million diminution in market value of their property due to public taking of this private property, and face an estimated tax increase of over $1 million without receiving anything in return for those additional taxes."


advertisement




The Pinewild residents were not asking for money, just for the court to say that annexation in this case amounted to "taking" private property. A financial claim could come later, if federal courts granted their petition for a declaratory judgment to that effect from the U.S. Court for the Middle District of North Carolina.

On July 10, U.S. Magistrate Judge P. Trevor Sharp recommended that federal Judge Carlton Tilley Jr. grant a motion for dismissal filed by Village Attorney Michael Newman and deny the petition filed by Lydia Boesch and others for Pinewild.

Tilley, in an order signed Thursday morning, followed Sharp's recommendations to the letter.

"Having reviewed ... the recommendation in light of both parties' objections, it is determined that the recommendation should be accepted in its entirety," Tilley wrote.

Sharp's stated reasons were that declaring annexation to be a "taking of private property for public use" would resolve only part of the issues. Still to be determined is the amount of compensation to be paid.

"The Fifth Amendment does not prohibit takings," Sharp's recommendation said. "It prohibits takings without just compensation. Plaintiffs ask this court to determine only the first issue. The court sees no rational basis for such piecemeal resolution. Further, even if the court decided the case as the facts stand now, key facts concerning the financial impact of the annexation may change before the annexation is complete, undermining the preclusive effect of findings made in this action."

Even if, as Boesch and the plaintiffs contend, "it will take too long to obtain a ruling in state court," this would not be a persuasive argument, Sharp had said, "but instead evidences forum shopping and procedural fencing."

Federal claims for compensation can be brought only after an alleged "taking" occurs, not before. The meaning of this ruling is that Boesch and the others can still ask a federal court to rule that the annexation "took property for public use" and determine the amount of compensation due -- after Pinewild is annexed -- but not until then.

"The delay is that annexation by law cannot become effective until state appeals are over," Newman said in a telephone interview Thursday afternoon. "This annexation has been done completely by the book. We don't have any concern about the state court action."

As long as there is an annexation appeal making its way through state courts, Pinewild will stay outside Pinehurst.

"We anticipate a decision from the N.C. Court of Appeals sometime around May or June," Newman said. "On the federal question, what every single court, state or federal, has said -- on a takings case -- is that it never arises until a taking occurs. Once annexed, they can file such a motion then. We believe Pinewild will officially become part of Pinehurst next summer."

Contact John Chappell at 783-5841 or by e-mail at jchappell@thepilot.com.

DB Error: unknown error

SELECT setting_name, setting_value FROM c5t_setting WHERE setting_name = 'default_language' [nativecode=1194 ** Table 'c5t_setting' is marked as crashed and should be repaired]
SQL Statement

SELECT setting_name, setting_value FROM c5t_setting WHERE setting_name = ?
DB Error: unknown error

SELECT setting_name, setting_value FROM c5t_setting [nativecode=1194 ** Table 'c5t_setting' is marked as crashed and should be repaired]
SQL Statement

SELECT setting_name, setting_value FROM c5t_setting