Pinewild annexation opponents were back in Superior Court on Monday. This time, they were there to fight a motion to dismiss their effort seeking a ruling on whether annexing a gated community would be "taking private property" without compensation.

A lawsuit that has been making its way through state courts is currently on hold waiting for the state Supreme Court to decide whether or not to grant discretionary review of a unanimous Appeals Court ruling favoring the village of Pinehurst.

State law automatically amends the effective date of court-challenged annexations to "the last day of the next full calendar month following the date of final judgment." Most expect Pinewild to become part of Pinehurst sometime after the first of the year, depending on the ultimate decision by the high court.

The Village Council adopted an ordinance to annex Pinewild effective June 30, 2008, but it has been on hold pending the outcome of state and federal lawsuits. All of the rulings so far have gone in favor of the village.

John and Lydia Boesch are among the active and vocal opponents of the annexation. Both were in court Monday along with some two dozen supporters.

The matter before Superior Court Judge James M. Webb was the village's motion to dismiss a request by the Pinewild group for a declaratory judgment as to whether annexation of a gated community amounts to a taking of private property that would require compensation.

The issue had been back and forth to federal courts, which sent it back down. Federal courts said annexation opponents can't challenge a "taking" until something has been taken for which they haven't been fairly paid, and they've already sought relief on that issue.

Mike Newman and Bobby Sullivan, representing the village of Pinehurst, argued that no actual controversy (at law) existed yet, since annexation had not taken place and might not. They contended that many facts (municipal regulations and taxes, for example) could change so that, after annexation, the situation could be different.

"Inverse condemnation," in which a payment is challenged as unfair, must be pursued first just as the federal court said, Sullivan argued -- and constitutional arguments, whether state or federal, come last after all other claims are done.

"You can't base a claim on the North Carolina Constitut-ion if you have a nonconstitutional claim first," Sullivan said. "Annexation is not 'taking.' Every court has ruled that way so far. Nothing in annexation opens private streets. The Court of Appeals has explicitly ruled that private streets won't become public (when annexed)."

Raleigh attorneys Gene and Dan Boyce, who are father and son, along with Lydia Boesch, herself an attorney, said Sullivan and the village were wrong.

All they want Webb to do is to tell the residents of Pinewild whether taking their land into the municipality takes something from them for which, according to law, they should receive compensation.

A case in Wilmington, called "Barefoot," took center stage as Gene Boyce accused the village's attorneys of citing it despite the fact that it had "been overruled" by the highest court in the land.

"Counsel should have known that Barefoot has been overruled by the United States Supreme Court," Boyce said, promising to fight the matter all the way to the top. "We are here in the first phase of a controversy under the U.S. Constitution whose ultimate destination is the Supreme Court."

The single issue in this action is whether the state's involuntary annexation process is a taking of property.

"All we are asking for is a court to tell us, 'Is annexation a taking?'" Boyce said. "Is it a taking of property? That's not a whole lot to ask."

Sullivan countered by saying that Barefoot had not been overruled at all. The only thing that happened is that it was appealed to the U.S. Supreme Court, which declined to hear the appeal.

A declaratory judgment is not appropriate, he contended, since litigation on the issue is not unavoidable. Since nobody knows now whether or not Pinewild will actually be annexed, pending a ruling on the petition for discretionary review by the state Supreme Court, nobody knows whether or not any inverse condemnation action will be filed.

Webb collected all the briefs and supporting documents, promising to notify the parties of his decision so attorneys for the prevailing side can prepare an order for him to sign.

Contact John Chappell at (910) 783-5841 or by e-mail at jchappell@thepilot.com.