Saturday, October 17, 2015

Is The Republican Turmoil In Congress The Final Failure Of Nixon's Southern Strategy?

I want to share a recent article by William Greider analyzing the Republican paralysis in the House of Representatives: GOP

I am not as optimistic as Greider that this represents a "final unraveling."  I do agree that the growing influence in the House of Republicans who have no interest in actually governing and solving problems is a reflection of the inherent tensions within the GOP created by the shotgun marriage between white supremacist former Democrats and Country Club Republicans.

Greider's take: "So what caused the current rebellion in the GOP ranks? It finally dawned on loyal foot soldiers in the odd-couple coalition that they were being taken for suckers. Their causes always seemed to get the short end of the stick. The GOP made multiple promises and fervent speeches on the social issues, but, for one reason or another, the party establishment always failed to deliver.
“We told people Obama was a dangerous socialist"…one Republican lobbyist explained,  "when really we knew he was a moderate. But they believed us.”
"This belated realization stirred the anger that has flared across the ranks of the followers — and not just in the South. The financial crisis, the bailout of the banks, and collapsing prosperity intensified their sense of betrayal. People began mobilizing their own rump-group politics to push back. The tea party protests were aimed at President Obama, of course, but they were also an assault on Republican leaders who had misled and used the party base for so long. Tea party revenge took down long-comfortable legislators and elected red-hot replacements who share the spirit of rebellion."

This started to come to a head in 2010 when Republicans elected 30 candidates to the House of Representatives who had never been elected to any office at any level of government.

The same thing happened at the state level. North Carolina is a case in point.

The General Assembly passed draconian changes to election law designed to suppress voting by African Americans and other minorities, to discourage young people from voting, and to make it harder for women to register and vote. (Women keep changing their last names. How do we know who they really are?) This all served as cover for equally draconian changes to the tax code to the benefit of wealthy North Carolinians and to the detriment of people who actually work for a living.

How long will it take for our local Tea Party types to figure out that they are being duped again?

Sunday, October 11, 2015

October 6 Town Board Meeting

Last Tuesday evening, October 6, the Oriental Town Board held its regular monthly meeting. Attendance was better than normal, because of the controversy over Yoga classes in Town Hall and controversy over the offer to the Town of a five acre parcel adjacent to Camp Creek. Town Dock covered the meeting here.

I would only add to Town Dock's account that at one point in the proceedings, Town Manager Diane Miller reported the advice received by phone from the Town Attorney, Scott Davis. Davis advised as follows:

1.  The Town government should not accept the parcel as part of the subdivision,but rather require the developers to resubmit the plat to sever the five acres from the rest of the subdivision and to remove the parcel (described as a park/arboretum) from the wording of the development's restrictive covenants. Otherwise the Town could become involved in legal controversies between lot purchasers and the current owner/developer. This seems like prudent legal advice;

2.  If the Town accepts the parcel, it should do so as a separate parcel with no restrictions on it.

If recommendation (2) means what it seems to, it may go beyond legal advice and get into policy advice. It sounds a lot like "don't tie your hands."

I urge the Town, if it accepts the offer of the five acres to be used as a park and/or arboretum, to request the owners to make an offer of dedication to the public for that purpose, to be held in trust by the Town.

Saturday, October 10, 2015

Oriental Town Government Incumbency Protection Program 1-3 Today

In about an hour, in spite of the rain, what the small, uninformative banner at top of the front page of the Pamlico News describes as "Old Fashioned Meet and Greet Scheduled for Saturday, October 10th, 1-3 pm at the Oriental Marina" will begin. There will be no candidate forum as in the past, where candidates for elective office have answered detailed, sometimes challenging questions from attendees. Voters usually learned a lot about candidates at these forums.

When I was a candidate, the forum was organized by Pamlico News Editor Tony Tharp, assisted by Town Dock. It was a good experience.

Today's "Meet and Greet" appears to be sponsored by Pamlico News, though this has not been spelled out. There has been little or no advertising. Pamlico News did not even inform all of the candidates of the event, pleading inability to find the candidate's phone number, which is on public record at the County Board of Elections.

A newspaper can't find a publicly available phone number?

The newspaper is, of course, owned by one of the incumbents, though that surely has no bearing on the matter.

I miss Tony Tharp and wish him and his family the best.

Sea Level Rise: No, Al Gore Didn't Invent It, It isn't A Hoax, And Now We Can Visualize It

Thank goodness, the water has gone down. This morning the water level at Oriental is a bit more than 10 inches above normal.

If you want to visualize what will be the normal water level in twenty-five years, just go down to Hodges Street at Town Dock 1 and take a look. If you want to know what the normal water level will be by the end of the century, we saw that here in Oriental last week when the water level reached its peak. That is the future normal.

Four years ago, our state legislature passed a law prohibiting sea level rise. More importantly, they prohibited government agencies at any level from planning for a sea level rise of more than 19 inches. Bad idea.

Last year, a draft state government study of projected sea level rise for the next thirty years was published. It has smaller numbers than the earlier study projecting sea level rise by the end of the century. But for government planning, thirty years is a very short time frame.

Wednesday, October 7, 2015

South Avenue: An Odor Of Mendacity

For the past two years, Town Board members have complained about my suit against the Town, asserting that I should have talked to them instead of filing suit. I was taken aback.

The record shows that as early as January, 2012, soon after the public became aware of the so-called "land swap" proposal that I questioned the Town's legal authority to do what they wanted to do. I expressed my concerns in writing and in face to face conversations with the Town manager and the mayor. I urged the mayor and the Board to ask the NC Attorney General for an advisory opinion. Or, alternatively, that the Town ask the School of Government for an opinion. The mayor refused.

In May through July of 2012, at public comment periods during Town Board meetings, a number of attorneys residing in Oriental spoke, all in opposition to the proposal. At the public hearing on closing Avenue A and South Avenue, Town Attorney Scott Davis admitted that no case law told the Town how to proceed.

For the past three years, I have been trying to obtain records of the closed sessions between the Town Board and the Town Attorney concerning my law suits. The official binder of closed session minutes has now disappeared. The Town has cobbled together some records that may or may not correspond to the missing ones.

What is NOT in those records is as interesting as what is.

One interesting record is for the closed session of March 3 of this year:

In case the Board was confused about my purpose, my letter of last January 26 should have cleared it up:

January 26, 2015

From: David Cox

To: Commissioners, Town of Oriental

Subj: South Avenue

Dear Commissioner:

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 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 appeal provision of the statute.

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 acted 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 settlement proposal, here is an abridged version of what I will argue 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, the question I am currently appealing is only whether I have a right to ask the courts to determine whether the closure complied with the statute.

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 alleges 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 such a 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 Constitutions.

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 as a subdivision lot owner. 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.

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 such dedication has occurred.

If the new property is properly dedicated to the public (and accepted on behalf of the public by the Town), and as an easement appurtenant to all of the properties within the original borders of the town, I would consider it an adequate replacement of the South Avenue right of way, and would be willing to forego further legal proceedings on the matter.

I will be forwarding a more detailed proposal for settlement to the Town's attorneys. My proposal will allow the Town to continue its current plans for the property, and effectuate promises already made by the Board, while ensuring an enforceable right of future generations to use the property as a public access point to public trust waters.

David R. Cox

Cc: The Honorable Bill Sage, Mayor


Before that, I have a long history of concern about South Avenue. 

Here is what I wrote about it in 2009.