Judge Tosses Pinewild Annexation Lawsuit
Pinewild residents who sued to stop annexation by the village of Pinehurst will appeal a judge's ruling in favor of the municipality.
On Monday, Superior Court Judge Lindsay R. Davis Jr. dismissed a lawsuit filed by a group of Pinewild residents seeking to block annexation of their gated community by the village of Pinehurst.
"No genuine issue of material fact exists," Davis said in throwing out the lawsuit filed in Moore County Superior Court. "Pinehurst is entitled to judgment as a matter of law."
Davis directed Village Attorney Mike Newman to prepare a proposed order.
"They lost on all counts," Newman said.
After details in his draft order are worked out between attorneys for both parties, a final version will go to Davis to sign.
Pinehurst Village Manager Andy Wilkison said he was pleased with the judge's ruling and that "it was the right decision."
Wilkison said he thought the judge's action vindicates and affirms the actions taken by Village Council and staff, as well as previous councils.
A group of 60 Pinewild residents, along with the company that owns the development, filed the lawsuit Aug. 9. Attorney Robert Hornik Jr., who represented the Pinewild plaintiffs along with Lydia Boesch, an attorney who lives in Pinewild, had argued that their case was unique and that the courts had not previously ruled on matters such as this in which an entire gated community was being annexed without consent.
An appeal is certain, Boesch said Tuesday, though she and Hornik had not had a chance to confer or to read the proposed order.
Unless there is an appeal, Davis' ruling would end attempts to stop the town from completing its 20-year move to annex Pinewild.
In January 1987, Pinehurst Village Manager George Wood sent a letter notifying developers of the proposed Pinewild subdivision that the Village Council would adopt a resolution of intent to consider annexing it. Last year, the council adopted a resolution to annex Pinewild effective June 30.
"We have known all along that we are going to appeal," Boesch said. "Right now, if we win, it comes back for trial in Moore County."
State law that gives municipalities the power to annex adjacent areas was written for a different purpose from what it's being used for now, Boesch said. Annexation was originally meant to assist towns in bringing development and city services to outlying areas that needed things like police protection and trash collection, she asserted
"Pinewild doesn't need anything the village has to offer," she said. Their security service, their garbage collection, is better than what the town would provide.
Federal Suit Pending
New information derived from very recent depositions of village employees raises new issues, she said.
"Thursday we realized we needed to take more depositions, and learned for the very first time the village paid private trash collectors to go to CCNC," Boesch said. "In all the discovery requests we sent to them, they never said they did that. State law says in annexed areas that 'all territory, citizens, and property will be subject to all laws ordinances and regulations ' of the town. We found out in depositions that we won't be. We asked, 'If we have a parade out here, do we have to get a parade permit?' We were told we wouldn't."
Pinewild's streets are private property. Only if they were to be dedicated as public would such rules apply. Boesch said this sort of thing is only one of many facts to be decided in a court hearing, not a summary judgment.
"A summary judgment says no facts in dispute," she said. "In a summary judgment, there is no dispute with regard to the facts. The judge says the facts are made known, all I have got to do is apply the law."
That is what Davis decided.
Newman contended that Pinewild is not unique or a special situation. Residents of gated communities do not enjoy any more protection against involuntary annexation than anybody else in North Carolina, he argued. Private property is the same whether gated or not, he said.
In October, a Superior Court judge dismissed two of the claims in the suit. Davis earlier dismissed a motion by Hornik to delay consideration of this suit until a different suit makes its way through federal courts.
That suit, filed by attorney Gene Boyce Jan. 31, claims that the involuntary annexation of Pinewild by the village is "an illegal taking" prohibited by the U.S Constitution and will significantly diminish property values, and that the village is constitutionally obligated to compensate residents for that taking.
Nothing in that federal suit could delay annexation, Newman said. Its only real issue is whether Pinehurst would have to pay money in compensation for the lost property value alleged in the suit.
While Boesch agreed that the only result of that suit could be an order for the village to pay compensation, it could amount to so much money the town will not want Pinewild at that price.
"It could be millions," Boesch said. Some such suits in other places have succeeded, though others have not, according to Boesch.
Pinewild lies on the border of Pinehurst along Linden Road and N.C. 211.
Dispute Over Services
Hornik prevailed in a recent case in which the N.C. Supreme Court overturned an annexation when it was shown that the only city service extended by the town of Marvin would be town administration of -- the results of the annexation itself.
"(State law) is grounded in a legislative expectation that the annexing municipality possesses meaningful services to extend to the annexed property," the court said.
Residents living in the 320 lots Marvin sought to annex wouldn't get anything at all except higher taxes. Law requires meaningful service improvement, the court said -- and explained the reasoning behind annexation law in North Carolina.
"The primary purpose of involuntary annexation, as regulated by these statutes, is to promote 'sound urban development' through the organized extension of municipal services to fringe geographical areas," the court said. "These services must provide a meaningful benefit to newly annexed property owners and residents, who are now municipal taxpayers, and must also be extended in a nondiscriminatory fashion."
In the Moore County hearing before Davis, Newman said Marvin was a bad example. Pinehurst has a wealth of services and will make them available on a nondiscriminatory basis to everybody in Pinewild -- unless Pinewild doesn't want to accept them. No law requires annexed owners to take service they don't want.
Those services, even if offered, would not be a "meaningful benefit" according to Boesch. Pinewild has better services now.
As soon as the final order is signed, she and Hornik will prepare their appeal. Annexation cannot take place while legal action is pending.
Staff Writer Tom Embrey contributed to this report. Contact John Chappell at 783-5841 or by e-mail at email@example.com.
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