Seventy Years Ago: The Home Front

The latest Tea Party/Libertarian/Anarchist whine is about the TSA conducting security checks of attendees at a Paul Ryan political event in Florida last weekend.

I never cease to be amazed at the organized paranoia of these people. Just for information, Secret Service, FBI and state and local authorities have been cooperating for over a century in providing security for appearances by presidential and vice presidential candidates. And for presidents. Example: April 14 2005 season's opener in DC of the Washington Nationals. I was there. But I didn't get to see George W. Bush throw out the first ball. Not enough TSA agents and the equipment wasn't reliable. It was the third or fourth inning before I took my seat.

So what was government like when we had a real war?

January 1942: automobile production ended for the duration. Sale of rubber tires to civilians ended. Anyone with more than five tires had to turn in the extras. Steel, copper, and aluminum were placed under wartime controls;

February: Daylight savings time (to conserve energy), rationing of canned meat and fish;

March: Fresh meat, butter and cheese rationed; two ration books issued to every man, woman and child - blue for two pounds of canned fruit and vegetables per month, red for 28 ounces of meat and 4 ounces of cheese per month; shield seaward facing lights within 12 miles of the coast; marriage increased 300% over 1941 (some in expectation of separation, some to avoid the draft); GM produced 28,728 Browning machine guns;

April: Price Control Act - 60% of foods maximum price set at level in March;

May: Iron, more steel, zinc under wartime controls; War Ration Book One issued - the sugar book; gasoline rationing - 2 1/2 gallons per month sugar rationed 1/2 lb. per month; Meat 7 lb., butter, coffee 1 lb. per month; civilian production banned on 136 items, including refrigerators, vacuums, vending machines, small appliances;

June: V-mail to the troops (microfilm);

July: milk, ice and bread delivery switch to horse-drawn wagons; metal products banned;

August: German U-boats sink a ship every four hours;

September: Fair Employment Commission reports 50% of all defense jobs remain closed to Negroes;

October: Meatless Tuesday initiated; draft age lowered to 18;

November: War Labor Board allows employers to raise pay for women 20 cents per hour if necessary to get employees (average 40% less than men); coffee rationing one cup per day;

December: Gasoline rationing with A, B, C stickers 4 gallons per month.

All prices were controlled by the Office of Price Administration.

Rationing ended in 1946.

Popular songs in 1942 include: "Praise the Lord and Pass The Ammunition," based on an incident aboard USS New Orleans during the attack on Pearl Harbor.

No one doubted we were all in the war together.

Cox v. Town Of Oriental

Some readers are aware that I filed an appeal last Thursday to the closing by the Town of Oriental of Avenue A on July 3 after a public hearing.

I filed the appeal within the statutory deadline of thirty days following the permanent closing of the street. A civil summons notifying the town of the appeal and providing a copy was served on Mayor Sage Monday morning about ten o'clock.

The mayor transmitted the appeal to Mr. Scott Davis, the Town Attorney, and to the town's insurance carrier.

Anyone who wishes to read a copy of the appeal will find a link on the home page of TownDock.net. I think the appeal speaks for itself.

To Arms!

Yesterday's shooting at a Sikh temple in Wisconsin, like the killings in Aurora, Colorado over a week ago, inevitably raise questions of the Second Amendment. The discussion these days invariably misrepresents the Second Amendment, takes it out of its historical context and leads the discussion into paths that need not be followed.

The Second Amendment was really the anti-Redcoat provision. Written less than fifteen years after the "shot heard round the world," the object really was to insure the United States would not have a large standing army. The revolutionists believed standing armies were destructive of freedom. The unstated, but clear presumption, was that militias under state control could defend against a small standing federal force, should it be necessary.

Justice Antonin Scalia proudly claims to be an "originalist," meaning judicial decisions should be informed by the original meaning of words in a law or constitution.

Two Sundays ago on Fox News Sunday, Justice Scalia revealed his ignorance of historic terms of art in the profession of arms and his superficial grasp of original meaning. The interviewer, Chris Wallace, asked Justice Scalia about the Second Amendment in light of the mass killings in Aurora, Colorado. Could there be any limits on the right to bear arms? Wallace asked. Scalia answered that, if a weapon can be hand-held, it probably still falls under the right to “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?
SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.
WALLACE: How do you decide that if you’re a textualist?
SCALIA: Very carefully.

Obviously?

Obviously Antonin Scalia has never borne arms. To bear arms is a term of art, ancient in origin, which means "to serve in the armed forces." Military personnel keep and bear arms. The term is not limited to arms a person can carry. Legally, under the International Traffic In Arms (ITAR) regulations, the term can apply to items not normally thought of as arms, like encryption programs. To "keep arms" does not mean to have in one's possession. It means to maintain in good order, as for example a lighthouse keeper does for a lighthouse.

These are things the average person understood in 1789.

Some definitions:

"arms [ɑːmz]pl n

1. (Military / Firearms, Gunnery, Ordnance & Artillery) weapons collectively See also small arms

2. (Military) military exploits prowess in arms

3. (History / Heraldry) the official heraldic symbols of a family, state, etc., including a shield with distinctive devices, and often supports, a crest, or other insignia

bear arms

a.  (Military) to carry weapons

b.  (Military) to serve in the armed forces

c.  (History / Heraldry) to have a coat of arms

(Military)

in or under arms armed and prepared for war

(Military)

lay down one's arms to stop fighting; surrender

(Military)

present arms Military

a.  a position of salute in which the rifle is brought up to a position vertically in line with the body, muzzle uppermost and trigger guard to the fore

b.  the command for this drill

(Military)

take (up) arms to prepare to fight

to arms! arm yourselves!

up in arms indignant; prepared to protest strongly"

Civilians do not bear arms - soldiers and sailors do.

To bear arms includes to equip one's force with or operate any kind of  weapon, including: sword, spear, pike, rifle, pistol, howitzer, bomb, torpedo, airplane, tank, warship, even military trucks, jeeps, or other logistical equipment for military uses.


On a linguistic note, I wonder if Scalia's native tongue is English.  In English (and Judges are expected to be very careful with language), there is a vast difference between "people" and "the people." "People" can refer to a collection of individuals - "people like football," for example. "The people" is always a collective noun and never refers to individuals. The drafters of our constitution invariably used the word "persons" when they referred to an individual right, though "people" might have also served the purpose. So when the drafters of the Second Amendment wrote "the right of the people to keep and bear arms," as a matter of language, they were not referring to an individual right.

Scalia's insistence that the Second Amendment confers an individual right to keep and bear arms is deficient as a matter of English grammar, reflects an inaccurate understanding of original meaning, and presents him with a logical dilemma, because he apparently recognizes that there must be some limits.

But he is wrong about cannon (and also ships, planes, rockets, bombs, torpedoes, missiles, etc.). They are all arms, and the people who maintain and operate them are engaged in keeping and bearing arms.

Which neither Antonin Scalia nor any other sitting Justice has ever done.

This Land Is Whose Land? Guilford County Register Of Deeds

There is a really interesting video of recent foreclosure issues in Greensboro, NC. Well worth watching:


 

 at: http://www.youtube.com/watch?v=5vpkAdRw7u8&feature=related

South Avenue: Heart Of The Matter

Last night I received an e-mail from Mayor Bill Sage responding to earlier e-mails from me. What I learned from his e-mail is that he and the commissioners seem bound and determined to be able to sell the parcel the Municipal Corporation will receive from Chris Fulcher in exchange for the public rights of way the town holds in trust for the public.

The mayor's mantra: "Don't tie our hands."

My mantra: "Don't violate your trust."

Here is the heart of my letter in response to the mayor:

"Bill:

"Thank you for your reply. I am pleased the Town is in contact with David Lawrence, and I look forward to reading the written exchange with him. I am interested in his response to your questions and any citations he provided. I would also appreciate copies of any correspondence with other professors contacted at the School of Government, and with the Legal Services Department of the North Carolina Department of Justice....

"Please bear in mind I am neither opposing nor defending the Wisdom of the transaction. I am questioning the Rightness of the contract.

"Each Town Board must make decisions concerning the Public streets based solely on the long-term traffic use interests of the Public.  In this case, the long-term interest that matters most to me is public access to public trust waters. You and the Board clearly intend to close the South Avenue Right of Way which you hold in trust for the public and to replace it with a private asset not held in trust, but free to be sold by the municipal corporation at any time. I conclude from your e-mail that this is not just an unintentional result, but has been central to your deliberations. That violates the responsibility of the trustee. That is wrong.

David Cox"

Here is the heart of Mayor Sage's e-mail to me:

"David,

 

"Thank you for your letter and materials concerning the South Avenue transaction.  I am sorry that you feel compelled to oppose a transaction that I believe will benefit the town and its citizens and visitors immensely.  You are correct that process is important and the town attorney has consulted at great length with several of the professors (and retired Professor David Lawrence) at the UNC School of Government.  All agree that the end result under the contract is legally achievable, but they disagree on the best procedure to follow to get there.....

"You now seem to be taking the position that this board has a duty to “tie the hands” of all future boards, no matter the circumstances.  Will a town board 50 years hence be thanking us for “tying their hands”  if the circumstances then facing them (which we cannot possibly foresee) make it imperative that the property be closed as public access to Raccoon Creek.  Should it then revert to the Fulcher heirs because we didn’t trust future boards to be as sensitive to the public good as we are?....

"We cannot judge from this vantage point the circumstances they may face in making those decisions in the future.  I know there is often a strong urge to “carve things in stone,” but I truly believe that most of the time the urge should be resisted for the good of all.

 

"I have long been impressed by your thoroughness and seriousness of thought.  I simply and respectfully disagree on this matter.  Thanks again for your input.

 

"Bill Sage

  

  My original e-mail:

"From: David Cox
To: bob maxbauer ; Bill Sage ; Warren Johnson ; cechele@yahoo.com; barbara venturi ; larsum@aol.com
Cc: letters@towndock.net; Maureen Donald < editor@pamliconews.com >; Charlie Hall < chall@freedomenc.com >
Sent: Sat, June 30, 2012 11:27:55 AM
Subject: contract between town of oriental and chris fulcher

Some of you know I have been uneasy with certain aspects of the contract between the town of oriental and Chris Fulcher. I have been especially uneasy over what appears to be a sale of town rights of way, contrary to the law of streets. I am also concerned that acquisition of waterfront property under the contract provides no protection to the public interest comparable to the status of a right of way.

"I intend to speak on the subject at Tuesday's public hearing.

"In the meantime I wish to share my thoughts and some relevant information with you in advance of the meeting. I will deliver a hard copy to Town Hall Monday morning.

"Many years ago when Ben Hollowell was town attorney and the issue of South Avenue arose, he consulted with David Lawrence of the school of government and received Professor Lawrence's views in writing. Those views remain a matter of record at Town Hall. Likewise, Mr. Hollowell contacted the attorney general concerning some legal aspects of a right of way leading to the water. The attorney general responded with an advisory opinion, which is also on record at Town Hall.

"I strongly recommend the town board table consideration of the contract and intended street closures pending written consultation both with the School of Government and with the North Carolina Attorney General.

David Cox"

 

South Avenue: New Stuff

Today at 3:15 the Town of Oriental published a set of significant amendments to the contract with Chris Fulcher. The public hearing is tomorrow night at 7:00. Not good.

Show Me Your Papers?

I'm a bit bemused by some of the rhetoric about the Affordable Care Act. A member of my family links to some of it on his Facebook page. "Today marks a sad day in the history of America. With the Supreme Court's decision, Americans have lost the right to be left alone..." one of the links announces. As opposed to when? I wonder. As opposed to 1792 under the Militia Act? As opposed to the Alien and Sedition Acts? As opposed to the Civil War draft, both North and South? As opposed to being required to register for the draft and with the Social Security Administration?

A big question in all this is whether government is to be effective or not. The "Real ID" Act is what computer programmers call a "kludge." That is, a clumsy work around.

There is a way to provide a national ID card, used for all purposes. If effected, it would provide useful tools for keeping track of immigrants, tourists arriving on tourist visa, students on student visas, and all the other ways Foreign citizens arrive here. Every advanced European country has such a system. It can even be used to show eligibility to vote. It would sort out domicile for purposes of state taxes, child custody, eligibility to run for office, license plates, replace draft registration (except for the draft physical) and keep track of where potential draftees live, etc.

Good article on the concept by Bill Keller in today's New York Times. If we were really serious about immigration, voting, driver's licensing, etc. We might institute such a system.

But the present mish-mash serves many purposes. Among others, "libertarians" and other brands of conservatives want the government out of their business but into everyone else's.

It reminds me of Mississippi's former tax on illegally sold beverages. Baptists and others of their ilk could point with pride to statewide prohibition of distilled beverages. Those who sold such beverages paid the state tax and bought federal liquor licenses. Both of those entities were happy. The State Tax Collector collected the tax but was prevented by law from blowing the whistle on those who paid the tax. It was no more illegal to sell to high school and college students than to anyone else. Sheriffs had to get their share of the take under the table, but they were used to that. They might schedule a show raid near election time. Just a cost of doing business.

Something like that is going on with foreigners. If we kept effective track of everyone, what would the "view with alarm" crowd do?

South Avenue: Just DO Right

For the past six months I have hoped the Oriental Town Board would just DO right. No luck so far.

It's not right to sell or barter a right of way, which the town doesn't own - it holds it in trust for the public. Once dedicated and accepted, a right of way is forever.

It's not right to obtain waterfront property to improve public access to the water and not protect it with deed restrictions, conservancy or some other method (example: Lou-Mac Park) to remove temptation from future town boards to sell it.

It's not right for a town board, faced with a contract of dubious legality (towns can't sell or barter streets - contract looks like a sale) without seeking written advisory opinion from experts, such as School of Government and Attorney General.

If, for the sake of argument, the Attorney General advises that the contract is legal, it's still not right not to follow scrupulously the provisions of North Carolina General Statutes (Section 160A, Article 12 - Sale and Disposition of Property). Waving arms and repeating "the right of way is worth NOTHING" doesn't hack it.

It's not right to sell or barter a public trust for purely private interests.

It's not right not to tie the town's hands. Hard as it may be to grasp, ownership of property by the Town is a private interest - the Town is a proprietor like any other concerning real estate parcels, but is only a trustee of streets and other dedicated public amenities. Town ownership doesn't make a lot a public interest. That's why citizens sometimes need to insist that town-owned property intended for public use have that use protected by deed restrictions or otherwise.

It's not right to focus on the outcome of a transaction and pay no attention to process. It is right process that makes a transaction legal, transparent and in the long-term public interest.

It's not too late to make it right.

Golden Rule Reaffirmed

This morning, by a five to four vote, the Supreme Court of the United States (SCOTUS) reaffirmed the Golden Rule - He Who Has the Gold, Rules. In states as well as the federal government. In a Montana case, SCOTUS ruled  that the decision in the Citizens United case in 2010 applies to state campaign finance laws and guarantees corporate and labor union interests the right to spend freely to advocate for or against candidates for state and local offices.

Government of the wealthy, by the wealthy and for the wealthy.

South Avenue: What Do I Really Think?

I have offered suggestions from time to time both on my blog and in private. My goal was to be helpful. I see little evidence that my suggestions have had any influence. So I spent some time this evening reviewing my past posts.

As early as last January 28, I addressed the puzzle of the announcement that the town was "exploring the possibilities of sale or exchange of property in the vicinity of the west end terminus of South Avenue and Avenue A..."

I pointed out that the town owns no property in that vicinity. And that the town can't sell public rights of way. That hasn't changed.

Since January 28th, I have encountered on the internet many legal references reinforcing the principle 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 (a Florida case).

See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, 1044 (Ill. 1993)(“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”). 

The same principle is spelled out by Eugene McQuillin in 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, in violation of fundamental principles of the law 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 cestui que trust (the public), liberally construed for its benefit, strictly construed to its detriment." McQuillen.

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 the temptation for the governing body to exchange rights of way held in the public trust for short term fiscal benefit.

To barter our town's most irreplaceable  long-term asset, namely public access to the public trust waters of our harbor, for waterfront real estate held in fee simple, will inevitably tempt future town boards to sell the property to meet short term fiscal needs.

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. In response to the concern I have expressed about the current transaction, that there should be some restrictions, 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.

Future 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 structure an acceptance of Mr. Fulcher's donation of property so that it was not a sale or barter and so that the public's interests were protected by conditions of the gift. There may still be a way.

The contract approved by the town board on May 17 isn't it.

George Bernard Shaw, Oriental and South Avenue

George Bernard Shaw, the Irish playwright and author, was seated next to an elegant lady at a dinner party. Engaging the lady in conversation, he asked her: "would you sleep with me for a million pounds?" A little taken aback, the lady thought for a moment and replied: "I might do."  Shaw continued the conversation, asking: "would you sleep with me for five pounds?" Huffing in indignation, the lady replied: "certainly not! What do you think I am?" The playwright responded: "madame, we have already established what you are - now we are haggling over the price."

The story came to mind as I reflected on the proposed exchange of two dedicated and accepted rights of way, including South Avenue, for a waterfront parcel of real estate 55 feet in width. Would I find the exchange more acceptable if the parcel were, say, 78 feet wide, which is the width of the riparian area of Raccoon Creek subtended by our present right of way. Or even 60 feet, which is the width on land of the existing right of way.

We should not haggle over the price, because there is a fundamental principal involved here. The Town of Oriental holds its streets in trust for the benefit of the public. The town is not the proprietor of the rights of way. It is well established that the town has no power to sell or barter its streets. While the town may vacate, close or abandon a street by formal action after a public hearing governed by statute, it nevertheless cannot vacate a street for the benefit of a purely private interest.

I have no problem with Mr. Fulcher's offer. Mr. Fulcher is not an elected official and is under no special obligation to defend or protect the public interest. From his point of view, the proposed contract appears logical.

The town's elected officials, on the other hand, do have an obligation to protect the interest of the public. Public rights of way are in a different category from any normal lots that the town may own, and which the Town Board is empowered by statute to buy, sell, lease, or deal with like any other person with a proprietary interest.

Rights of way are quite different.

Another Lovely Weekend

We have suffered through another lovely weekend here in Oriental, NC at the water's edge. It's a tough life, but someone has to do it.

That's why we have to be particularly vigilant to protect the streets which provide public access to public trust waters and remind town government that it has no power to sell or barter the streets it holds in trust for the benefit of the public.

Oriental Noise Ordinance

Tuesday night at the meeting of the Town Board, during the public hearing concerning the Steamer's special use permit request, noise complaints were discussed. When asked, our acting police chief reported that he had received three recent noise complaints concerning the Steamer. Someone asked whether he had measured the noise level with the dB meter. Mr. Moore responded that, at that time of night he didn't need to.

That may confuse some of our citizens who remember the struggle about four years ago to modify the noise ordinance in effect at the time.

Four years ago, the Town Board engaged in a protracted effort to craft an amended noise ordinance that balanced the uncertainty facing businesses and musicians (caused by the fact that the previous ordinance established the standard that if a neighbor complained, the sound was ipso facto too loud) with the reasonable interest of residents to be allowed to enjoy peaceful uses of their residences. We sought to accomplish this by establishing a measurable, objective standard for the operation of sound amplification equipment. For such equipment, acceptable sound levels were set at a maximum of 65 dBA +/- 2dBA between the hours of 9:00 a.m. and 9:00 p.m. Permissible levels were set at 60 dBA between the hours of 9:00p.m. and 9:00 a.m. In both cases, the measurement was to be at an exterior portion of the dwelling of the person making the complaint.

Exceptions may be granted up to four times a year at any place of business, allowing on these special occasions sound levels up to 75 dBA from 9:00 a.m. to 9:00 p.m. and 70 dBA from 9:00 p.m. to midnight, also measured at an exterior location of the complainant's residence. In no case can the sound level exceed 92 dBA +/- 2 dBA when measured at a distance of 20 feet from the source.

Mr. Moore may be relying on Article II Section 1, which declares it "unlawful for any person or group of persons "to willfully make, continue, or cause to be made or continued, any unreasonable loud or disturbing noise...." As written, the ordinance only requires dB measurements for use of sound amplification equipment.

It might be a good idea for the Town Board to revisit this ordinance with a view to removing any residual ambiguity.

Oriental Town Board Meeting June 5

A few things learned at last night's meeting of Oriental's Town Board.

1. The town manager has advertised for two full time police positions for the town;
2. The town manager is interviewing applicants for a position as assistant clerk;
3. The town board approved the issuance of a special use permit to the Steamer restaurant to add gaming as a category of use, subject to keeping the front door closed and removing the sidewalk tables, in order to reduce noise in the neighborhood. Some board members and members of the public attempted to expand the discussion to the question of whether the Steamer should be allowed to remain open to serve liquor as late as 2:00 a.m. At least two commissioners thought that was too late and one has promised to introduce a measure that would close all bars in town at an earlier hour. The mayor rightly ruled that such a discussion was outside the scope of last night's public hearing, which was a quasi-judicial proceeding limited to the special use permit request.

In side discussions after the meeting, some observed that the town's requirement for two police officers is somewhat driven by the fact that Oriental is the only municipality in Pamlico County allowing sale of liquor by the drink.

South Avenue Public Comments

There has been some reaction from citizens of the town about the town board's action to approve the proposed contract for a land swap. Today's Town Dock has three letters from citizens.

A lot of questions have been raised, not only by the general public, but also by members of the Parks and Rec committee.

I learned last week that the contract was finalized by attorney Scott Davis representing the town and attorney Steve Weeks representing Chris Fulcher. Steve Weeks is a competent attorney who aggressively protects his clients' interests. He is the attorney who saved the town's bacon when Scott Davis lost the suit against Mr. Lacy Henry over South Avenue at summary judgment - before ever getting to trial.

The best advice Scott Davis ever gave the town, back in 2002 when the town asked him to represent us in the suit against Lacy Henry over South Avenue, was to retain a litigator. He was right.

But Scott Davis not only isn't a litigator, he has not proven much of a negotiator and has not always provided the town with competent legal representation.

However the present negotiation is resolved, I think it is past time for the Town to retain a different lawyer or firm as town attorney.

South Avenue Procedure

I understand from Town Dock.net that the Town of Oriental may hold a meeting Thursday, May 17 to hear public comments on the proposed contract with Chris Fulcher.

There are some chicken and egg issues involved here.

Before the town can complete the contract by closing streets, it must hold public hearings. Those hearings require public notice at least four weeks in advance. Here are the relevant provisions from North Carolina General Statutes:

§ 160A‑299.  Procedure for permanently closing streets and alleys.

(a)        When a city proposes to permanently close any street or public alley, the council shall first adopt a resolution declaring its intent to close the street or alley and calling a public hearing on the question.  The resolution shall be published once a week for four successive weeks prior to the hearing, a copy thereof shall be sent by registered or certified mail to all owners of property adjoining the street or alley as shown on the county tax records, and a notice of the closing and public hearing shall be prominently posted in at least two places along the street or alley.  If the street or alley is under the authority and control of the Department of Transportation, a copy of the resolution shall be mailed to the Department of Transportation. At the hearing, any person may be heard on the question of whether or not the closing would be detrimental to the public interest, or the property rights of any individual.  If it appears to the satisfaction of the council after the hearing that closing the street or alley is not contrary to the public interest, and that no individual owning property in the vicinity of the street or alley or in the subdivision in which it is located would thereby be deprived of reasonable means of ingress and egress to his property, the council may adopt an order closing the street or alley.  A certified copy of the order (or judgment of the court) shall be filed in the office of the register of deeds of the county in which the street, or any portion thereof, is located.

(b)        Any person aggrieved by the closing of any street or alley including the Department of Transportation if the street or alley is under its authority and control, may appeal the council's order to the General Court of Justice within 30 days after its adoption.  In appeals of streets closed under this section, all facts and issues shall be heard and decided by a judge sitting without a jury.  In addition to determining whether procedural requirements were complied with, the court shall determine whether, on the record as presented to the city council, the council's decision to close the street was in accordance with the statutory standards of subsection (a) of this section and any other applicable requirements of local law or ordinance.

     No cause of action or defense founded upon the invalidity of any proceedings taken in closing any street or alley may be asserted, nor shall the validity of the order be open to question in any court upon any ground whatever, except in an action or proceeding begun within 30 days after the order is adopted. The failure to send notice by registered or certified mail shall not invalidate any ordinance adopted prior to January 1, 1989.

(c)        Upon the closing of a street or alley in accordance with this section, subject to the provisions of subsection (f) of this section, all right, title, and interest in the right‑of‑way shall be conclusively presumed to be vested in those persons owning lots or parcels of land adjacent to the street or alley, and the title of such adjoining landowners, for the width of the abutting land owned by them, shall extend to the centerline of the street or alley.

The provisions of this subsection regarding division of right‑of‑way in street or alley closings may be altered as to a particular street or alley closing by the assent of all property owners taking title to a closed street or alley by the filing of a plat which shows the street or alley closing and the portion of the closed street or alley to be taken by each such owner.  The plat shall be signed by each property owner who, under this section, has an ownership right in the closed street or alley.

(d)       This section shall apply to any street or public alley within a city or its extraterritorial jurisdiction that has been irrevocably dedicated to the public, without regard to whether it has actually been opened.  This section also applies to unopened streets or public alleys that are shown on plats but that have not been accepted or maintained by the city, provided that this section shall not abrogate the rights of a dedicator, or those claiming under a dedicator, pursuant to G.S. 136‑96.

(e)        No street or alley under the control of the Department of Transportation may be closed unless the Department of Transportation consents thereto.

(f)        A city may reserve its right, title, and interest in any utility improvement or easement within a street closed pursuant to this section. Such reservation shall be stated in the order of closing.  Such reservation also extends to utility improvements or easements owned by private utilities which at the time of the street closing have a utility agreement or franchise with the city.

(g)        The city may retain utility easements, both public and private, in cases of streets withdrawn under G.S. 136‑96.  To retain such easements, the city council shall, after public hearing, approve a "declaration of retention of utility easements" specifically describing such easements.  Notice by certified or registered mail shall be provided to the party withdrawing the street from dedication under G.S. 136‑96 at least five days prior to the hearing.  The declaration must be passed prior to filing of any plat or map or declaration of withdrawal with the register of deeds.  Any property owner filing such plats, maps, or declarations shall include the city declaration with the declaration of withdrawal and shall show the utilities retained on any map or plat showing the withdrawal. (1971, c. 698, s. 1; 1973, c. 426, s. 47; c. 507, s. 5; 1977, c. 464, s. 34; 1981, c. 401; c. 402, ss. 1, 2; 1989, c. 254; 1993, c. 149, s. 1.)

More South Avenue Considerations

This will probably be my last post on this subject for awhile, unless something really alarming happens. 

I recommend the town board be very clear in their guidance to the town attorney.

If the central issue is, as I believe, whether the proposal by Mr. Chris Fulcher offers equivalent or improved public access to public trust waters in the town's harbor, we need to compare relevant facts. And our attorney needs to have command of all of the facts as he negotiates details.

Some issues:

Legal:

1. South Avenue was dedicated to public use of the citizens of Oriental by the principal landowner, Mr. Robert P. Midyette, in 1900 – providing public access to the water;
2. Avenue A was dedicated by Mr. Benjamin Wallace O'Neill in December, 1917 by the sale of lot 1 of the Oriental Bulkhead Improvement Company – Avenue A never led to the water;
3. The town may not sell a dedicated and accepted right of way either for money or any other valuable consideration. An exchange of ROW for title to property looks like a sale. I have said before and still believe, it would be better if Mr. Fulcher dedicates the property to the town for purposes of public access to the water than for the town to receive it in fee simple as a proprietor. It would be more clearly legal and provide better protection to the public.

Dimensions of South Avenue:

1. The South Avenue Right of Way is 60 feet wide;
2. Because of the angle at which South Avenue intersects the Raccoon Creek, the waterfront is approximately 90 feet long;
3. Because of the direction of the riparian boundaries, the width of the water to which the town owns rights is 85 feet, more or less, in a direction parallel to Mr. Fulcher's existing piers;
4. Mandatory (15 foot) CAMA buffers at the edges of the riparian area reduce the width of riparian area available for constructing piers or docks to 55 feet;
5. The parcel Mr. Fulcher proposes to donate to the town is 55 feet wide at the water's edge – he proposes both parties waive mandatory CAMA buffer: even so, with a mandatory CAMA buffer at the Toucan Grill end, that leaves only 40 buildable feet, even with the waiver.

What Can Be Built:

1. It is often asserted that we can build NOTHING on a right of way, “not even a gazebo!”
2. Not necessarily - we build stuff in rights of way all the time;
3. The rule is that we can build no permanent structure, even in unopened sections, that would prevent eventual use for ROW purposes;
4. In Town of Oriental ROWs, we plant trees, construct water mains and Sewer mains, utility poles and other encumbrances;
5. Yesterday a truck delivered a rest room facility and placed it in the ROW at Lou-Mac;
6. Other communities build shelters for bus riders, including public school students in their ROW (some shelters might even resemble gazebos);
7. Each year during Croaker Fest, large tents supported by pipe frames are installed on South Avenue near Lou-Mac Park, even involving some degree of damage to pavement;
8. During some large public events in the past, such as bicycle events, etc. organizers have placed trailers on the right of way for participants, including shower and rest room facilities.
9. In short, obstacles to providing public facilities for visitors and event participants in our ROW are not insurmountable. It might require a bit of imagination. [I am indebted to Kathy McIlheny, who gave me the trailer idea]
10. The proposed parcel is unbuildable for 50' from the water's edge Neuse River Buffer), the next 25' is in a CAMA area of environmental concern, and the last roughly 30 feet will probably be used for parking and other requirements to comply with our GMO, as well as ramps to meet ADA requirements for access to any building constructed on the property.

Advantages of The Proposed Parcel:

1. The site has been dredged and bulkheaded and a pier is under construction;
2. Sewer and water connections already exist;
   3.  Fewer building restrictions than a right of way.

Disadvantages of The Proposed Parcel:

1. Narrowness of the parcel and riparian area constrains visiting boats;
2. Some say the pier is unsuitable – too industrial for recreational boats;
3. Some say the projected pier is in the wrong place.

Conclusions:

The decision should be based on what is best for the town.

Avenue A only provides public access to Mr. Fulcher's property.

It is not correct to say that rights of way "are of no value." In coastal North Carolina, nothing is more valuable to the public than public access to the water.

South Avenue - This Isn't Personal; It's Business

Five years ago, when I first realized things were going badly awry with the town's lawsuit over South Avenue, I determined to pursue the cause as vigorously as possible. What was the cause? It was public access to public trust waters. It was also, more generally, pursuit of the Town Board's obligation to protect and defend public assets.

I was not motivated by any animosity toward Mr. Henry. I don't know Mr. Henry. Neither in the present case concerning the Town's response to Mr. Fulcher's proposal for what amounts to an exchange of routes of access to the harbor, am I motivated by either hostility or warm feelings toward Mr. Fulcher. Any such feelings are neither here nor there. A few years ago, I set forth my views about the suit here.

The bottom line now, as it was for more than a decade, is: 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-five years and arguably for a hundred and twelve. It extends all the way to Raccoon Creek. The Board would be remiss if it didn’t continue to defend the public’s right of access to public waters, which has been provided by South Avenue.

We know that if we lose control over public access to the harbor in the vicinity of South Avenue and Avenue A we will never get it back. Future generations will never be able to use that access to public waters unless it is defended. 

We are now faced with a proposal from Mr. Fulcher which, if accepted by the town, may consolidate his holdings in a way that will enhance the value to him and to his "successors and assigns." 

Any benefit to Mr. Fulcher should not be the focus of our deliberations. Our focus should be on whether the proposal provides the public with equivalent or improved access to public trust waters in our harbor.  

We also have the issue of whether the proposed deal, as negotiated, is legal.

More later.

South Avenue Update

Last night at the regular Oriental Board of Commissioners meeting, attendees were shown a detailed survey of the area surrounding the intersection of South Avenue and Avenue A. The survey was done in support of the contract being negotiated between the town and Mr. Chris Fulcher. The contract itself has apparently not been completed, but some provisions can be deduced from details on the survey. Here is the survey:

I see several potential problems with the proposal as reflected in the survey.

Oriental's Parks and Rec board met this morning at 8:00 to review the plans. There is a brief account here at Town Dock. The main issues were summarized as follows:

"Like some of the public — such as Oriental resident and long-time sailor Art Tierney — who were at the meeting, a majority of the Parks and Rec Board questioned whether the town was getting adequate land and water rights and maneuvering room for visiting boats in the exchange.

"One issue: how savvy were town officials when they negotiated the deal. When asked this morning why the town hadn’t done a real estate appraisal on the land that Chris Fulcher would gain in the land swap, Town Commissioner Larry Summers dismissed the idea and reiterated his position that the right of way land was worth nothing to the town."

I will address these issues over the next day or so.

More On The South Avenue Deal

Today's Parks and Rec meeting was good, because attendees asked a number of probing and worthwhile questions. Those interested in taking another look might want to review some earlier observations I made here.

I think my previous post covers most of the issues. I'd be happy to answer any questions anyone may have. Contact me at: cox.d.r@att.net.