The purpose of rule of law instead of arbitrary authoritarianism is precisely to "tie the hands of government."
In January, the Town Board simply rejected my proposals.
Here is the letter:
"January 26, 2015
From: David Cox
To: Commissioners, Town of Oriental
Subj: South Avenue
As you are aware, I have filed an appeal of the Superior Court’s recent orders dismissing my challenge of the Board’s decision to close South Avenue.
I am writing to explain my appeal, to assess the current status and potential future paths for my challenge, and to describe a proposal I am submitting to the Town’s attorneys.
First, I must explain that my challenge to the Board’s closure of South Avenue is not identical to my challenge of Avenue A. If it were identical, I would not pursue the South Avenue challenge after the Court of Appeals decision in Avenue A, and I certainly would not appeal the case to the same court which upheld dismissal of the Avenue A case.
The difference between the two cases is that in Avenue A I complained of infringements on “public rights,” while in South Avenue I also complain of infringements on my private property rights. To understand the importance of this difference, it is helpful to look closely at what the Court of Appeals decided in Avenue A and what it did not decide.
The Court of Appeals limited its decision to determining whether my complaint and arguments qualified me as “a person aggrieved” as that undefined term is used in the appeal provision of the street closure statute.
My basic argument in the Avenue A case was that I was a “person aggrieved” because:
1) the closure of Avenue A infringed on the rights of the public to use the public right of way;
2) I am a member of the public; and
3) I am “aggrieved” in the dictionary meaning of the term (“discontented”) with the closure.
The Court of Appeals did not accept this argument. Instead, the Court borrowed from cases defining the term “aggrieved parties” in zoning cases to decide that “any person aggrieved” in the street closure statute means:
“one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property.”
As the Court noted, I did not allege in my Avenue A complaint that the closure of that street caused any personal injury to my private property rights or damage my property value, but instead alleged only violations of “broad, public rights.” Given the Court’s definition of the term, it found that my “public rights” complaints did not qualify me as a “person aggrieved” under the statute.
The Court did not decide whether the Town’s deal with Mr. Fulcher and the closing of Avenue A pursuant to that deal was a lawful exercise of the Town’s legal authority.
The Court did not adopt the Town’s arguments that only abutting property owners may challenge street closures. If the Court believed that, it would have defined “person aggrieved” as including only persons owning property abutting the closed street.
The only thing the Court of Appeals determined was that because I had not included in my complaint any allegations that I had suffered personal injury to any private property interests of my own, I did not qualify as a “person aggrieved” within the meaning of the statute which establishes the procedure for appealing town street closures.
The Court went out of its way to note (twice) that it was not ruling on my separate challenge to the South Avenue closure. In addition, the Court made it clear that if I did include allegations and arguments showing personal injury to my own private property interests in the South Avenue challenge I could qualify as a “person aggrieved” with standing to pursue that separate challenge.
Because I have alleged the South Avenue closure caused injury to my private property interests, and because I am arguing in this case, based on a long line of North Carolina Court of Appeals and Supreme Court decisions, that my property interests include a private property right in the South Avenue right of way, my South Avenue challenge satisfies the elements the Court of Appeals found lacking in the Avenue A challenge.
Unfortunately the Superior Court ignored the central ruling of the Court of Appeals’ Avenue A decision and the fact that my South Avenue challenge includes the elements required to show I am a “person aggrieved” with standing to appeal the South Avenue closure. This is unfortunate because it will now require an appeal to the Court of Appeals before the case can proceed to the next steps.
Keep in mind that the question before the courts right now is not whether the town acted within its authority in closing South Avenue. The question at this point is simply whether I am a person who can ask the courts to determine whether the town did act within its authority. I am confident that the Court of Appeals will find that my South Avenue complaint meets the requirements that Court set out in its Avenue A decision for establishing the right to have the courts review the closure.
While I believe that upon review of the Board’s closure vote, the courts will find that the Board did not comply with the statutory requirements for closing a street, at this point the issue under appeal is my right to have a court review whether the closure complied with the statute, and not the “merits” of whether it did comply with the statute.
That said, I am increasingly dismayed at the amount of taxpayer money which is being invested in delaying a trial on the merits of my challenge.
Though I would prefer that South Avenue be returned to its status as a street because I believe it is a superior open space and water access point compared with the “net-house” property, I do wish to present the Board with a proposal to end further legal proceedings.
I am therefore separately forwarding to the Town’s attorneys a proposal which would satisfy my most serious concerns about the Town’s deal with Mr. Fulcher, and also allow the Town to use the new property as a “replacement” public space and water access park.
My proposal would permit the kinds of plans the Board has been considering for the property, including attendant buildings and service potential. It would require that promises which the Board has already made about the property, but which have not yet been put into effect, be fulfilled.
In order to help you understand why I continue to challenge the South Avenue closure, and the purpose of some elements of my proposal, here is an abridged version of the arguments I will make to the Court of Appeals if we are unable to reach a settlement.
My Private Property Rights in South Avenue
The Town’s attorneys have argued to the courts that the Town has a right to close public rights of way. I agree that a town may close a public right of way, if, and only if, the requirements of the closure statute are met. Obviously I do not agree that the statutory requirements were met in the closures of either Avenue A or South Avenue, or I would not have brought legal proceedings seeking to reverse those closures.
As explained above, however, the question I am currently appealing is only whether I have a right to seek a court determination of that question.
The Court of Appeals ruled in the Avenue A case that to establish my right to seek such a determination, I must complain that the closure injures my personal property interests.
Unlike my Avenue A complaint, my South Avenue challenge does allege that the closure injures my personal property interests. That complaint is supported by innumerable North Carolina court decisions over the course of more than 100 years which establish:
“It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys [any of] the lots … with reference to the plat… he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public.”
“Purchasers of [such subdivision] lots … acquire vested rights to have all and each of the streets shown on the map kept open.”
“To have deprived those who purchased lots with reference to the original map, and those claiming under them, of appurtenant rights in and to the streets, for the purpose of vesting such rights in another merely for private use would run counter to provisions of the Constitution of North Carolina, Art. I, Sec. 17, and to the 14th Amendment to the Constitution of the United States.”
Town of Blowing Rock v. Gregorie, 243 NC 366 (1956)(emph. added)
The “vested right” in subdivision streets acquired by subdivision lot purchasers are usually described as an “easement appurtenant” – this means property interest is an “easement” which is “appurtenant” (attached) to the purchased lot. The right not only belongs to the original lot purchaser – it is passed as part of the lot to subsequent heirs or purchasers of that lot.
While the above quotes from the Gregorie case describe these rights as arising when a subdividing landowner sells lots with reference to a plat, the same rights arise when the subdividing landowner sells lots bordering on streets which are actually laid out and marked on the ground, or by reference to a map of streets adopted as an official town map. The principle is the same – when the landowner sells the lots according to a plan of streets, the right to use the planned streets is an inducement to purchase the lot, and is part of the value for which the lot purchaser pays.
The courts have also recognized that these rights to all of the planned streets arise when multiple landowners sell lots out of their respective lands according to a common street plan. A purchaser of a lot from one landowner’s property obtains rights in the planned streets which cross the other landowners’ properties if both landowners are selling according to the same street plan.
This is what happened in Oriental in 1899. All of the owners of properties within the original town sold lots according to a plan of streets laid out and marked on the ground, and later surveyed and mapped by the Town. Oriental’s founding landowners agreed in concert to develop their properties according to this common plan. Because all of Oriental’s founding landowners cooperated in selling lots according to that plan, all lot purchasers obtained appurtenant easements in all of the planned streets, including the portion of South Avenue leading to Raccoon Creek.
Mr. Clark Wright, representing the Town, acknowledged to the Superior Court that subdivision purchasers obtain such rights. Mr. Wright, however, asserted that these rights simply do not apply when a town closes a street, and that I therefore do not have standing to challenge the closure. I believe Mr. Wright is incorrect and his assertion is not supported by case law.
As for the merits of the case, should we ever reach that point, in certain limited circumstances a town may close a street even though the closure interferes with private appurtenant easements. Otherwise there would be no purpose to the street closure statute. For example, in the 1965 case of Wofford v. NC State Highway Commission, the North Carolina Supreme Court recognized a narrow “public interest” exception to “takings” claims, based on legitimate exercise of the state’s police powers .
This narrow “public interest” exception is the source of the “public interest” language in the street closure statute. As Professor David Lawrence points out, the purpose of the statute is to prohibit towns from closing streets if such closures would give rise to compensable takings in violation of the U.S. and North Carolina statutes.
You may disagree with my position that the closure of South Avenue was not within the “public interest” exception allowed by the closure statute. It may be that the courts ultimately disagree with me on that question. But that question is not related to whether I have standing to have a court determine the matter.
The purpose of the appeal provision of the closure statute is to allow a court to review whether the closure complies with the provisions of the closure statute, including the “public interest” provision. The Court of Appeals’ Avenue A decision held that the question of whether or not I have standing is determined by whether or not I have claimed a property interest in the “affected property” or damage to my property value that is different from the rest of the community, not whether the Town has the right to close a street despite such property interest or damage.
It is very clear under North Carolina case law that I own a vested private property interest in the South Avenue right of way. The elimination of that right of way necessarily reduces the value of my property interest, particularly considering the water access rights included in that right of way. This meets the Court of Appeals’ definition of a “person aggrieved” with standing to bring an appeal of the street closure.
In a series of protracted court battles, subdivision owners with private appurtenant easement rights in the public streets of the Town of Oak Island successfully challenged that town’s attempts to misuse subdivision water-front street ends for non-street purposes (construction of parks), and I believe the Court of Appeals will apply the same reasoning and hold that I have standing to challenge Oriental’s closure of South Avenue.
Whether the Town acted lawfully in closing the street pursuant to its deal with Mr. Fulcher will then be directly before the courts.
Because the Town closed the street in order to benefit Mr. Fulcher and to acquire valuable real property which the Town may at any time close off to the public, or lease or sell to private interests in order to raise revenue, I believe the closure constitutes an unlawful taking of my Constitutionally-protected property rights without due process and compensation.
While I could seek compensation for that taking in inverse condemnation proceedings, I instead prefer to have South Avenue continue to be available, which is why I have sought a reversal of the Board’s closure vote.
My Proposal for Settlement of Litigation
The agreement between the Town and Mr. Fulcher stated that after the closure of South Avenue, Mr. Fulcher would “rededicate” a portion of South Avenue leading to the new property acquired by the Town. So far as I can tell, this has not been done. The deed transferring the new property to the Town describes the entire parcel as a fee simple conveyance to the Town, including former portions of South Avenue. Dedication and acceptance of public amenities would tie the Town’s hands. Three years ago, the mayor informed me he didn’t want the Town’s hands tied.
The Board unanimously adopted a resolution declaring its intent “that any property obtained by the Town of [Oriental on] Raccoon Creek, as a direct or indirect consequence of closing the right of way on South Avenue, will be dedicated as a public park, with public Water Access on Raccoon Creek.” No dedication has occurred, and the resolution appears without legal effect on the future of the property. The Town has argued (citing Watts v. Valdese) that regardless of any past use or how acquired, a Town has complete discretion to sell or exchange any real property it owns. I agree. But there are ways to preserve amenities for future generations, typically through dedication and acceptance. That should have been done at the time of the transfer.
If these matters were properly addressed in a way to preserve the amenities for the future, I might be willing to abandon further litigation. Such measures should include at least :
1. Proper dedication of the new property to the public and acceptance by the Town on the public’s behalf;
2. Dedication of the property as an easement appurtenant to all properties within the original borders of the Town;
3. Abandonment by the Town of all efforts to seek sanctions under rule 11.
This proposal will not only effectuate promises already made by the Board, but will ensure enforceable public and private rights to use the property for water access purposes for future generations.
David R. Cox
Cc: The Honorable Bill Sage, Mayor"