Monday, September 21, 2009


The first fight I took up after being elected Town Commissioner was to defend the town's ownership of the South Avenue right of way all the way to the Harbor. I had no quarrel with the other board members or the previous board - all of them thought the right of way belonged to the town. But the town attorney seemed to believe we had a losing case. I didn't. I had read David Lawrence's book on NC right of way law and believed we had a winning case. Our attorney proceeded to lose the case at the hearing on the motion for summary judgment. The issue became whether to hire a professional litigator and pursue an appeal. I pressed for that, and the other board members supported the decision to hire Mr. Stevenson Weeks to handle the appeal. He won a unanimous decision by the NC Court of Appeals, as reported below. Now we await a decision by the NC Supreme Court whether they will review the case. The Court of Appeals decision appears to apply to all of the town's street ends.

September 21, 2009 Update

On the 7th of July, 2009, the North Carolina Court of Appeals reversed the decision of the Pamlico County Superior Court in the case of TOWN OF ORIENTAL , plaintiff v. LACY HENRY and wife, JUDY B. HENRY, Defendants. "The Town contends," the Court said, "the trial court erred in granting summary judgment in favor of the Henrys and in not granting summary judgment in favor of the town. We agree." The court concluded its unanimous opinion as follows: "Accordingly, as there were no genuine issues of material fact as to whether the Town was the owner of the South Avenue terminus, the Town was entitled to judgment as a matter of law. We hold that the trial court erred in granting summary judgment in favor of the Henrys and in failing to grant summary judgment in favor of the Town. We thus reverse and remand this matter to the Pamlico County Superior Court with instructions to enter an order consistent with this opinion."

The Henrys petitioned the Court of Appeals for a rehearing, as was their right. The Court of Appeals denied the petition, whereupon the Henrys petitioned the North Carolina Supreme Court to grant a discretionary review of the Court of Appeals decision. That is where the matter stands.

In May, 2008, PamlicoInk published an interview with Mr. Lacy Henry. In response, I wrote the following letter to the editor of The Pamlico News:

Dear Editor:

In a recent interview, Mr. Lacy Henry seems puzzled that the Town of Oriental is suing over his claim to own the portion of South Avenue that he leased from the town for many years. “I am not sure what is driving the town’s actions,” he says.

There is no mystery here. The Board of Commissioners has a duty to protect the town’s assets. South Avenue has been a public right of way for at least ninety years and arguably for a hundred and ten. It extends all the way to Raccoon Creek. We would be remiss if we didn’t defend the town’s right of way. It provides public access to public waters.

Mr. Henry has a lot to say about this. Not all of it is accurate. At a hearing last New Year’s Eve in Bayboro, he told Judge Crow that he and his father before him paid taxes on the terminus of South Avenue since the early 1950’s. Public records show that is not the case. They have never paid taxes on the disputed parcel.

In the interview, Mr. Henry recalls with nostalgia his family’s operation of a marine railway at the site. Speaking of the railway’s remaining track and winch, he says “if you move it, you will never get it back.” He also emphasizes that he holds a CAMA permit for an eight slip marina at the site, combining the town’s South Avenue street end with the adjacent waterfront lot that he owns. He doesn’t mention that the CAMA permit allows him to dump four feet of fill and build a bulkhead and piers right where the old tracks and winch are located. It isn’t clear how this preserves the marine railway.

From the town’s viewpoint, we know that if we lose control over the end of South Avenue, we will never get it back. Future generations will never be able to use South Avenue for access to public waters if Mr. Henry prevails. Whether Mr. Henry’s planned marina is a good idea or whether it ever comes to pass is beside the point. Mr. Henry’s “successors and assigns” would be able to do whatever they want with the land whether or not it was a benefit to the citizens of Oriental.

If the street end remains in the town’s hands, we can build another town dock, serving as a powerful draw to the 14,000 boats per year passing up and down the ICW only two miles away. This would bring customers for all of the town’s businesses and a lot of goodwill for future business. Cruisers attracted by free docking spend money and come back. If Mr. Henry wants to preserve a piece of the town’s past and attract visitors, he can certainly find a way to pool resources and work together with the town.

The struggle between the town and Mr. Henry isn’t about the past – it’s about the future.

David Cox

Oriental Town Commissioner

Sunday, September 20, 2009

Animal Control

Animal Control

One of the first issues the present town board addressed in 2008 was the question of animal control. Many residents want a leash law. Many others were attracted to Oriental precisely because we don't have one. The board was in complete agreement that we don't want vicious or threatening dogs at large. There was great disagreement on issues of exact rules and enforcement. Those who wanted a leash law were not happy with the modification we made in 2008. Earlier this year, Commissioner Kellam proposed a draft ordinance that I thought was a big improvement over the existing one, but still raised questions. I voted against referring the issue to a committee of citizens, but agreed to go over the proposed language with Commissioner Kellam. The following is a letter I sent to a resident on the subject.

September 20, 2009

Dear Resident:

I want to let you know where I stand on the animal control ordinance.

Local newspapers, including the Pamlico News, were in error when they reported I voted against the draft animal control ordinance.

The only vote taken was whether to refer the draft to a committee of citizens, equally divided between proponents and opponents of a leash law. I oppose that procedure just as I opposed the stakeholder's committee three years ago and as I opposed a noise ordinance committee. That would be a cop-out. The town commissioners were elected to take on such tough issues.

I also think that creating an ad-hoc committee on the fly (that is, in the course of a meeting without advance thought) is prone to all manner of misunderstandings as to terms of reference, the task, the expected time frame, etc.

As for Kathy Kellam's draft, I think it is a considerable improvement in many respects over our present ordinance. Still, there are significant issues raised by the draft, many of which she pointed out during the meeting. I have questions about some of the policy issues that I would like to resolve. In the end, whether I support the draft or some modification of it, will depend on answers to several practical questions.

I think there is support for more effective animal control measures. Whether this requires clarification of our existing ordinance, better enforcement of its provisions, more public involvement in timely reporting and complaints, or a combination of the above, I don't know. whether the provisions in Kathy's draft are enforceable concerning keeping cats under restraint, whether "voice command" is a viable concept even with dogs, are reasonable questions in my mind.

I don't agree with the County Compass headline that the draft is "dead on arrival." I certainly didn't vote against any specific changes, just against referring it to a committee. Especially after the fuss over a noise ordinance committee, I want to make it clear I don't support such an approach.

What I do support is for the Town Board to conduct public hearings or even formal investigations into proposed ordinances. While looking through NC General Statutes recently on another issue, I came across the provision empowering town boards to conduct investigations,even to the point of issuing subpoenas to witnesses. I think this is an excellent way to receive input from the public and from experts.

Another suggestion I have heard is to hold an "advisory referendum" during the forthcoming election. That suggestion came from a lifetime northerner. I don't like referenda, because the ones I have seen invariably oversimplify the issue. A question, for example: "Do you favor a leash law for Oriental" or even "do you favor enhanced animal control measures for Oriental" wouldn't tell us much. Details matter.

I have had a number of discussions with the town manager concerning our existing ordinance. When we passed it, none of the commissioners wanted to allow dangerous, vicious or threatening dogs to remain at large. Such animals are clearly covered by state law, and the county animal control officer has jurisdiction to respond to complaints. Our ordinance also addresses nuisance animals. I think we need to clarify the nuisance category. More importantly, we have few town resources for animal control. If we wish to rely on the county for support in that area, we need to conclude an interlocal agreement or memorandum of understanding spelling out the details of procedure. I have had a preliminary discussion with the County Manager about this, and he seems receptive to the idea, though a bit concerned about whether the county has sufficient resources.

I have agreed to sit down with Kathy Kellam to address specific issues and concerns and how best to address them.

David Cox