I had hoped by bringing legal precedents to the Board's attention that they would proceed with caution.
It didn't work. Here's the letter:
David R.
Cox
409
Academy Street
Oriental,
NC 28571
252-249-7219
June 15,
2012
The
Honorable William Sage
Mayor, Town
of Oriental
507 Church
Street
Oriental, NC
28571
Re: Proposal
to Vacate South Avenue and Avenue A and Agreement between the TOWN OF
ORIENTAL and G.CHRISTOPHER FULCHER et al
Dear Mr.
Mayor:
I oppose the
contract approved by the board of commissioners of the town of
Oriental on May 17 between the town and Mr. Chris Fulcher. I oppose
it not because of the resulting shape and size of the property
accruing to the town, though I think a better result could have been
negotiated.
I oppose it
because it violates a fundamental principle of right of way law: “the
governing body shall not sell or barter the streets and alleys which
it holds in trust for the benefit of the public.”
I have no specialized legal resources, but have easily located
authoritative legal references confirming that a town may not sell or
barter a public right of way:
"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),
"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),
See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, (“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”);
Eugene McQuillin, Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument.” The power to maintain and regulate the use of the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);
The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, and transforms the town into a proprietor rather than a trustee of public streets.
This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the public, liberally construed for its benefit, strictly construed to its detriment." McQuillen at 569.
One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes any temptation for the governing body to divest itself of rights of way held in the public trust for short term fiscal benefit.
To barter this town's most irreplaceable long-term asset - public access to the public trust waters of our harbor - for real estate held in fee simple, will inevitably tempt future town boards to sell the resulting waterfront property to meet short term fiscal needs. Once sold, the public will never get it back. Ever.
To barter a
right of way, dedicated in perpetuity by Mr. R.P. Midyette for the
purpose of public access to the water, for a parcel of unrestricted
real estate which a future board of commissioners could sell without
even a public hearing does not protect the public interest.
Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"
Why? Because our rights of way are held in trust.
Town Boards may not always keep the town's future in mind. We need to help them do so.
There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.
The contract approved by the town board on May 17 isn't it.
Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"
Why? Because our rights of way are held in trust.
Town Boards may not always keep the town's future in mind. We need to help them do so.
There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.
The contract approved by the town board on May 17 isn't it.
Sincerely,
David R. Cox
CC: Mr.
Sherrill Styron, Commissioner
Mr. Warren
Johnson, Commissioner
Mr. Larry
Summers, Commissioner
Ms. Barbara
Venturi, Commissioner
Ms.
Michelle Bissette, Commissioner
Mr. Robert
J. Maxbauer, Town Manager
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