Cox v Town of Oriental

Today was the day the North Carolina Court of Appeals heard my case against the Town of Oriental. This was at least the end of the beginning, if not the beginning of the end.

We won't know the outcome for weeks or perhaps months. I'm not counting any chickens yet, but I think my case is strong. Still, there are never any guarantees when a case goes before a court.

Without getting into the ins and outs of my legal argument and the Town's, I want to register a mild complaint in another direction entirely.

From the time I first brought my concerns before the mayor and the town commissioners, I had the impression that elected officials and the town's attorney dismissed my views out of hand. What could a naval officer possibly know about the law? And why would he make a big deal about whether the town was acting within its legal authority?

Those who don't go down to the sea in ships have possibly never reflected that a warship operates in a very complex legal environment. Commanding officers must not only understand Law of the Sea, but also grasp how his actions may affect the interests of the nation differently depending on where the ship is located. The legal regime may vary depending on whether the ship is in US waters, or even whether the ship is in the Mississippi river, on the Great Lakes, or in other special regimes. Is the ship in international waters? Is the ship in the territorial waters of another sovereign state?

What legal regime applies? How does the legal regime affect the captain's authority and legal responsibilities?

I first encountered these issues when I was seventeen years old and learning to be a naval officer. To be sure, I was taught navigation and seamanship. I was taught ordnance and gunnery. I was taught the operation and maintenance of ship propulsion plants. I learned radar, sonar, other electronic systems. But that wasn't all.

The very first semester of my four year course of Naval Science introduced me to "US Naval Regulations, 1948." This document spelled out the authority and responsibilities of Naval officers - the source of the authority and the limitations on that authority.

A little later on, I studied the Uniform Code of Military Justice,  the Judge Advocate General Manual, and the Manual for Courts Martial.

These weren't just theoretical studies. They were central to my profession.

In those days, more so than today, unrestricted line officers performed most of the Navy's legal functions. We administered justice through non-judicial punishment as well as through our own criminal justice system under the UCMJ. In case of mishap, suspicion of criminal activity or in other cases, we conducted our own investigations using procedures in the JAG manual.

To do all of these things in 1954 when I began learning about it, the Navy had very few legal specialists. We did not even have a JAG corps of legal officers at all until 1950. You would not find one aboard most ships. Some major commands had a JAG officer assigned. The first JAG officer I served with was on a guided missile heavy cruiser in 1971.

When I was commissioned as a naval officer and reported to my first ship, within six months I was the ship's legal officer. I was also the navigator, the personnel officer, the administrative office, and a dozen other things. When the captain convened a court-martial, I was the trial counsel. Over the years, at various times I served as trial counsel, defense counsel, member of the court and president of the court. 

I first worked really closely with Navy JAG officers in the Pentagon in 1972. We collaborated on international negotiations, on issues involving status of forces agreements with foreign powers, in negotiations on Law of the Sea matters.

By that time, I had degrees in international law and diplomacy. Many of my civilian counterparts in the Office of the Secretary of Defense and in the State Department were attorneys. I learned a lot from them. After I retired, I continued working on international issues as an engineer and policy analyst in the field of international technology cooperation.

I certainly don't know as much about courtrooms as practicing attorneys do. That's why I retained one to represent me in my appeal of the trial court's dismissal of my complaint against the town.

There are a lot of terms of art in the legal field that don't come tripping off my tongue. Though I dare say few practicing attorneys know more about Law of The Sea than I do.

The best way for professionals to relate to each other is with mutual respect. The better to learn and to join forces.

My goal all along has been to protect the public interest and the rule of law.

Cox v Town Of Oriental Update

Last Thursday the Town of Oriental filed a 33-page motion with the North Carolina Court of Appeals requesting permission to file an additional reply ("surreply") in addition to normal filings in an appeal, responding to my reply to the Town's brief. This is pretty much unprecedented. The Court has already scheduled the hearing in the case for April 23rd.

I don't know what action to expect the Court to take in response to the Town's motion. But I am certain that the 33-page motion (posted here) will add to the Town's legal bill.

Elections For Sale To The Wealthiest And Most Powerful

The US Supreme Court earlier today ruled in McCutcheon v Federal Election Commission that FEC ceilings on how much money a wealthy donor can donate to political campaigns are unconstitutional. Today's ruling completes the coup by the Supreme Court of the United States begun with their ruling in Bush v Gore in 2000. It was hard in 2000 to explain to voters that the most important issue in that election was "who gets to appoint Supreme Court justices for the next four or eight years." Justice Sandra Day O'Connor understood this when she heard the networks had called Florida for Gore and immediately commented "that's terrible." Now America's elections are blatantly for sale to the highest bidder. Unless voters catch on. The vote is all we have now, and in NC the GOP is doing its best to impede the franchise.

Lincoln's statement that "government of the people, by the people and for the people shall not perish...." has been replaced by "government of the wealthy by the wealthy and for the wealthy." 

Get out and vote. Let the lackeys of excessive wealth in our legislatures, Congress and Governor's mansions spend more time with their families!

Cox v Town Of Oriental

Oriental's Town Attorney, Scott Davis, updated the Board on the status of my suit against the Town. In a nutshell: the Court of Appeals hearing by a three-judge panel is docketed for April 23. There will be no oral arguments. It may be a couple of months more before we hear the results.

Russia's Paranoid Schizophrenia and The Clueless West

The West's contribution to the totally unprecedented challenge of conversion of the Soviet Union to a democratic and market-based society was, in my view, spotty at best. I say this as one who was involved in projects in Russia, Ukraine and Poland and very aware of projects in Estonia, Rumania and Moldova.

I also deplored at the time the unrestrained triumphalism that proclaimed: "we're number one - nyah, nyah nyah, we won the cold war." That wasn't helpful. Especially in places like Ukraine where people, especially elderly pensioners, were suddenly plunged into poverty by policies we pushed. So-called "shock therapy," for example, was pushed by policy makers who had no idea what the previous seventy years had put into place. The idea of "privatizing" a complex industrial establishment by issuing coupons to the citizens so they could buy shares in crumbling enterprises was a disaster in the making.

One of the most disappointing viewpoints at the time was that of USAID, whose bureaucracy was certain we knew what to do because, after all, we had privatized railroads and coal mines in the UK under Thatcher, tin mines in Bolivia and such like. They were, in short, clueless.

The folks the big six accounting firms sent out to do this gargantuan task were, for the most part, recent MBA's who didn't speak any local language and who were ignorant of the context. Bright, energetic, but ignorant.

We could have done better. Germany did do better. The Germans managed the conversion of East Germany not perfectly, but well enough. One reason Estonia is doing pretty well these days is that the Germans managed that conversion. Czechoslovakia, Poland and Hungary had the advantage of pre-war experience in a market-based system.

Not only did the people we sent not have a background in Soviet economics, they had no background in Western Europe. They thought the American Way was the Only Way.

Let's do better next time.

I've been reading the news from Ukraine with dismay.

Didn't we win the cold war? Didn't we do away with Communism? Didn't George W. Bush look into Putin's soul and see someone we can do business with?

The truth is, our cold war conflict with the Soviet Union had little to do with Communism except in the minds of our own paranoid capitalists. In fact, in the opinion of the last Prime Minister of Russia before the October (Bolshevik) revolution, the Soviet Union didn't have a socialist or communist system at all - it was a case of State capitalism.

Anyhow, I wish the Ukrainians well. I have probably read more articles on the developing crisis than most Americans. I have collected links to a number of articles, mostly from the NY Times, but also from other sources. Please take your time and read them.

http://www.nytimes.com/2014/03/15/opinion/trudolyubov-putins-honest-brokers.html?hp&rref=opinion

http://www.nytimes.com/2014/03/15/opinion/mccain-a-return-to-us-realism.html?action=click&contentCollection=Opinion&region=Footer&module=MoreInSection&pgtype=article

http://www.nytimes.com/2014/03/16/business/crimea-through-a-game-theory-lens.html?ref=international

http://articles.latimes.com/2014/mar/04/opinion/la-oe-walker-ukraine-nato-expansion-20140304

http://www.nytimes.com/2014/03/14/opinion/getting-ukraine-wrong.html?action=click&module=Search&region=searchResults%230&version=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry347%23%2Fukraine%2Bwest%2Bmistakes%2F

http://www.newyorker.com/talk/financial/2014/03/24/140324ta_talk_surowiecki

Cox v Town Of Oriental Now On Line

All of the documents for the case of Cox v Town of Oriental are now available on line at the NC Court of Appeals web site: http://www.ncappellatecourts.org/search-results.php?sDocketSearch=13-1222&exact=1

Any of you who are interested in the right of way dispute can now read all of the documents the Court of Appeals will consider.

No one can predict how the Court will rule, but I thinkI have by far the better argument.

Right of Way law is a bit esoteric. For the most part, it is based on Common Law - that is, law made by courts, not by legislators. Statutes can always override Common Law, but often they merely codify or clarify Common Law where there is some ambiguity.

In most cases, people's eyes glaze over when the topic of "right of way" law comes up. Even Linda Greenhouse, a  Supreme Court wonk who writes about the US Supreme Court for the New York Times, missed the significance of the US Supreme Court's ruling in its most recent case, MARVIN M. BRANDT REVOCABLE TRUST, ET AL., PETITIONERS v. UNITED STATES, decided March 10, 2014.

On the face of it, Brand was just another boring right of way case. Greenhouse couldn't figure out what the case was really about until she read Sonya Sotomayor's dissent in the 8-1 decision. The U.S. lost, by the way.

One thing becomes clear from the case: precedents matter. Chief Justice Roberts, writing for the majority, explains: “The government loses th[e] argument today, in large part because it won when it argued the opposite before this court more than 70 years ago,” he wrote.

Sotomayor's was the sole dissent. She argued that the 70 year old case shouldn’t govern the outcome of this one because it had involved subterranean rights — the right to drill for oil — rather than the simple surface rights now at issue. In Justice Sotomayor’s final paragraph, Greenhouse at last understood why the decision might matter: “The court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation,” Sotomayor wrote, adding: “And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Rails to Trails. Established by Congress with the National Trails System Act Amendments of 1983. A procedure established in the public interest.

My case is not dissimilar. I have not argued that the Town [that is, the municipal corporation which has legal rights like any other corporation] made a bad deal. I argue that they have no statutory right to make any deal at all - that the only thing of value they had to sell or trade was their vote. And that what's at stake is public access to the water.

I'll address our arguments in more detail later, but as the Town's web site says, "it's all about the water."

I'm Getting Too Old For All-Nighters - Or Even Almost-All-Nighters

Cox v Town of Oriental is taking more energy than I had hoped. Or maybe it is that I'm not as young as I used to be - but who is?

Last Sunday I was up most of the night reviewing the plaintiff appellant's (that's me) reply brief. What should I say about "defendant-appelant's" ( the Town) brief?

There was a lot to cover. Cases to read, past records to review, logical connections to think through. It isn't easy.

Is it worth it?

I think what is at stake is, at bottom, whether we will have the rule of law, and whether that law will protect the public interest.

In my view, those are pretty high stakes.

I never intended that the case be seen as a personal dispute.

I keep thinking of that scene in Godfather where the racketeer is taken for a ride: "This isn't personal - it's business!" the killer assures his victim.

My action isn't all that drastic.

I am told that the NC Court of Appeals has the goal of issuing its rulings no more than sixty days after receiving a case. The attorney filed the reply brief yesterday.

We may know the outcome in two months. But some cases take longer.

I will let my readers know when the reply brief is posted on the Court's web site.

Cox v. Town of Oriental - South Avenue Suit

For those following my suit against the Town: last week the Town requested a 30-day extension of time to reply to my filing with the Court of Appeals. So we are now looking at March to complete the filings with the Court of Appeals. I'll keep you informed.

Wheels Of Justice

Some say the wheels of justice grind exceeding slow. As a case in point, I filed my complaint against the Town of Oriental August 2, 2012. After a lot of preliminaries, My attorney has just today filed a brief with the North Carolina Court of Appeals. The Town has thirty days to file its brief. So it will be at least mid to late February before the Court begins to process the case.

Patience is a virtue in such circumstances.

Oriental Race For Commissioner

As Ben Cox announced at last week's candidate forum, he has started a facebook page for his campaign. He has just added an important note relating to the Town's law suit concerning South Avenue.

The issues concerning rights of way may seem complicated, but they really aren't. Those who are curious and also who understand that commissioners should focus on the future of the Town as well as the present can read his fuller explanation here. I recommend it.

Tea Party Radicalism: Just A Bit More Extreme?

Much current commentary tends to describe the Tea Party phenomenon as just a bit more extreme than mainstream Republicanism, but within the American tradition. Francis Fukuyama recently tied the Tea Party efforts to the parts of the US Constitution that make it hard for anything to get done.

Michael Lind thinks it is more than that. It may have roots going back to Jefferson and Jackson (and to the Anti-Federalists, but Lind doesn't bring that up), but it represents a fundamentally anti-democratic undertaking. Think Downton Abbey.

Here is Lind's article. It is the best analysis I have read lately, putting it in the context of the American Civil War, the failure of reconstruction, and the reaction to the Voting Rights Act and Civil Rights Act.

There are a lot of different ways to look at current American politics. The different angles overlap, and they all seem to involve race to some degree.

I strongly recommend reading Lind's article.

Names And Their Complications In Elections

My mother, born in Texas in 1916, never had a birth certificate. She had a driver's license, issued in Oklahoma in 1932, but didn't need a birth certificate to get it. Her name was misread by the typist who filled out my birth certificate. My parents were divorced and she remarried a young soldier in 1940. He recorded the marriage with the military but reversed the order of her first and middle names.

When I entered school in 1943, I used my stepfather's name, but I wasn't adopted until 1946. The school didn't care. Their job was education.

When I married, my wife took my adopted name but always went by her middle name rather than her first name. That was never a problem, through my thirty year naval career. She eventually started going by her middle name as her first name and her maiden name as her middle name. That worked just fine for a very long time. Then government bureaucrats started getting all hinckey about names and decided to start using driver's licenses as the equivalent of an internal passport ("carte d'identite) like other national governments issue.

My sister (first name Elizabeth) got caught up in the naming hysteria when the IRS complained that her pay checks, W-2's, etc. were made out to "Betty."

Every one of these perfectly innocent circumstances can lead to problems under the "real identity" laws.

Now Department of Motor Vehicles insist that every document give exactly the same version of the name. I might point out that this has absolutely no connection with whether the holder of a driver's license can safely operate a motor vehicle.

This is a frequent problem for women. Here is a recent article in the New York Times summarizing the problems for a woman who kept her unmarried name for professional purposes and uses her married name for private and family purposes.

This set of issues has now been brought into the artificial hysteria of voter ID. Republicans, who want to destroy the credibility of elections (when the "wrong" people win) levy charges of major discrepancies in voter registration - it must be fraud. These charges are usually based on computer matching programs, and on close (and expensive) investigation by boards of election, it turns out there is no fraud at all.

North Carolina Governor Pat McRory recently asserted that we need all these changes to voting procedures to "close loopholes that allow a voter to vote two or three times." There are no such loopholes.

In 2008 in North Carolina, more citizens cast votes than ever before - more than four million. North Carolina has an extensive set of safeguards and has its own computer matching system to uncover double voting. In 2008, the State Board of Elections uncovered 18 cases of double voting. On investigation, only one was found to be intentional and that case was prosecuted.

In a more recent case, a voter cast his ballot at one of his county's one-stop sites. Subsequently he realized he had not completed the reverse side of the ballot. So on election day, he went to his normal precinct and cast a ballot only on the reverse side. He was caught and prosecuted.

Since passage of the National Voter Registration Act in 1993, registration records in all states have vastly improved. North Carolina's records are among the nation's best.

Don't be hoodwinked. There is no election day voter fraud in North Carolina.

I'll have more to say later.

What About Syria?

The subject of Syria keeps coming up at The Bean. "What do I think?"

I shy away from the subject. The truth is, I know a lot about warfare (it's my profession), but I don't know much about Syria.

I also know a lot about diplomacy, international law and strategic planning. But what I know of these subjects leads me to be cautious. Especially when the action under review is to become involved in someone else's civil war. Danger!

I also don't think much of the idea that we can just bomb a country into submission without some form of "boots on the ground." Or at least the threat of "boots on the ground." * And be sceptical of "regime change" as a goal. We're still suffering the aftereffects of our ill-considered "successful" operation of sixty years ago, where we caused the overthrow of Mohammad Mossadegh, the democratically elected, progressive prime minister of Iran.

We saved Iranian oil for British Petroleum, but at what cost?

Worth thinking about.

 *The only case that comes to mind of a successful military campaign won almost entirely by bombing is that of Kosovo in 1999.

It's All About The Water - And Rights Of Way

Last year, when I was offering the Town's elected officials every suggestion I could muster on how to avoid legal missteps on South Avenue, I advised them to seek an opinion from the Attorney General.

I wasn't flying blind. I had a copy of an advisory opinion issued by the NC Justice Department in 1995 addressed to Oriental's Town Attorney. The opinion thoroughly explored right of way law across the nation as it concerned streets leading to navigable waters. I even called Town official's attention to the letter, which I knew was in Town files. That's where I got my copy.

When the mayor replied that the Town didn't want its hands tied, I wondered if they had actually consulted the document.

As it turns out, the Attorney General's advisory opinion is posted on the NC Department of Justice web site here. It totally refutes many of the claims made by the Town's attorneys at the court hearing of March 4, 2013.

Another opinion, that of the North Carolina Court of Appeals in the case of the Town of Oriental v. Henry, also in the Town's files, counters many points made on March 4 by Town's attorney. Here is that opinion, on the Court of Appeals web site.

A careful reading of these two opinions will reward anyone interested in legal issues associated with rights of way, especially those leading to navigable waters.

Warren Johnson July 3, 2012: "What Have We Just Done?"

At the public hearing on closing Avenue A and South Avenue, held July 3, 2012, twenty local citizens spoke. Half were opposed to the land swap and half supported it. Among the speakers were three attorneys. All three opposed the swap for legal reasons.

When the public hearing was closed, the Town Board began discussing what action(s) to take. It was a confusing discussion. Afterwards, many attendees asked for clarification. It appeared that many of the commissioners were also confused.

A few days later, I obtained a copy of the Town's audio recording of the public hearing. It was not until I listened to the recording that I was able to follow what happened, even though I attended the hearing.

As a public service, I am providing a complete transcription of the discussion by the Town Board following the public hearing:


Transcription Board of Commissioners of Town of Oriental meeting
of July 3, 2012, deliberation by Board members after closing public
hearing: Source – Official digital audio recording made by Town of Oriental
[Time in Hours, Minutes and Seconds From Start of Audio Recording]

[...Public Hearing Closed] 1:11:21

Bill Sage (Sage): 1:11:40
There are basically two halves to get to what all the experts seem to agree is a
legal end. And that is closing these street rights of way and acquiring in fee
simple the yellow lot as you see it there.

One train of thought is that we proceed as we are proceeding tonight with closing
the street rights of way and then accepting the donation of the property shown
there in yellow.

The other train of thought is that we treat it as or we approach it as an exchange.
NC State law provides for and empowers a municipality to exchange a property
interest *or an interest in real estate, or personal property for that matter, for other
property. And there is a procedure set out basically in section 160A-271 for an
exchange of property interests.
[*Not exactly. Must be property belonging to the Town. Not “an interest.”]

And one of the options that the Board has is instead of choosing which of the two
paths to take to touch both bases and go through not only the street closing and
donation process which we we’ve taken another step towards tonight by having
this hearing, but also to go through the exchange process. And that of course
would entail a postponement of a decision on closing the streets for purposes of
gathering the necessary information and giving the necessary notices that the
statute requires under the exchange provisions. And so we can proceed with
consideration of closing the streets or we can defer a decision on closing the
streets so as to bring forward the necessary notices and information to comply
with section 160A-271.

Barbara Venturi (Venturi): Point of clarification; what additional information would we
be collecting and putting out?

Sage : 1:15:19
Under 160A-271, the town may by private negotiations enter into
an exchange of real or personal property *[Note: “belonging to the city”] if it is satisfied
that it receives full and fair consideration in exchange for its property. And it requires
that notice to be given by publication of the meeting at which the town board will
consider the exchange. And the notice must state the value of the properties.
[Note repeated misrepresentation of the statute.]

Larry Summers (Summers): [whispering to Venturi “I have a motion on this...”]

Summers: 1:15:36 I’d like to make a motion...
??:
“That’s enough to... receive it.”
[papers shuffling] [Summers submitted a written motion. No copy was
provided to the public in violation of NCGS 318.13(c).]

Sage: [Venturi recognized]

Venturi: 1:16:06
Indistinct... “model for openness”... indistinct...]
“If it is appropriate to follow two lines of action to ensure that all obstacle courses
have been dealt with, I move that we go forward on the full and fair consideration
including notice to the public, that would include appraisals as soon as appraisals
or evaluations of the properties and considerations...”

Sage: 1:16:53 “...Motion by Commissioner Venturi to pursue the exchange of property
provisions of section 160A-271 postponing a decision on the street closure until such
time as a public meeting is noticed to the public and published for consideration of the
exchange. Seconded by Commissioner Johnson, any discussion?” 

[Note: portion in italics is the motion on the floor as stated by the mayor.]

Summers: “I’d like to make a point of order to the attorney: Is what we are doing an
exchange of property or a closure of a right of way?”

Scott Davis: “I think it can fairly be viewed as an exchange.”

Venturi: 1:18:20 [Indistinct... “appraisals, comparison full and fair”... indistinct.]
“if it is considered a swap, we should at least value these things and provide the
ability to prepare these properties for the public.”

Warren Johnson (Johnson): “By doing so, will we not be covering all our bases?”

Scott Davis: 1:19:00 “That’s the theory. As Mr. Cox and others have pointed out*,
there are a number of ways to structure this transaction - I have spoken to no-one that has
come to the conclusion that we cannot achieve this result.
“The theorical [sic] differences are in how we get there.

[*Cox had previously suggested Town lacked authority for exchange and
suggested stand alone transactions with dedication to public or deed
restriction. Town response: “Don't tie our hands.”]

“There’s camp that likes an exchange agreement, there’s a camp that likes a pure
exchange, there’s a camp that likes a street closing and a donation separated.
“And we don’t have any case-law that tells us what the magic recipe is. *

[*Translation: “We can't find a case that says we can do this.”]

“So here, since we have folks who have alternate points of view, and there’s
nothing that precludes us from trying to accommodate those different points of views,
meaning there is no down side to doing it both ways, and there is potential up-side if one
way is determined to be superior...

“...[1:19:41] so to me it’s a rather easy path to go down, to take the more prudent
course to do it both ways, and hopefully, one of those two ways takes.”

Venturi: [Indistinct about fact that holding a hearing doesn’t mean the Board must vote]

Scott Davis: [no, you would do that later, and you’d take evidence and vote]

Summers:
“I am opposed to this thing, and I’ll tell you what, we’ve been working on
this thing for seven months [subdued “oooh”s from the audience] [... indistinct...I hear a
lot of legal opinions anyone here a lawyer?” ...]

Jim Privette [from audience:] “yes”

Summers: “Experience in municipal law?”

Privette: “Yes. Municipal attorney in North Carolina.”

Summers: 1:21:34 “The other thing is: appraising the property. I look at this piece of
property, we don’t own the property, we own an easement, as Bill Marlow said,
and I look at that, what can you do with an easement?
“You can’t sell an easement, you can’t eat an easement, you can only close an
easement, that’s the only thing that you can do.

[Note: Summers got that right!]

“What we’re looking at doing is closing streets, and then being offered in
exchange, if we close the streets, you will receive X as a donation to the, for the
good of the Town.
“I think that’s a wonderful thing, and I think it’s a wonderful piece of property for
it.

“Grace Evans brought up something that I think is really important here. One of
the reasons we have a problem now, with our anchorage, is because of the five
acres that was sent out there with Oriental Harbor Marina... We have killed the
goose that laid the golden egg for Oriental... That’s what we did and I absolutely
believe that.

“I would like to be able to go over and put my chair on that property on Saturday
night and watch the fireworks, but I guess if we do this, we can’t. I am a believer
in doing it, and if this motion fails, I will offer a motion to close the streets.”

Sherril Styron (Styron): “If it’s gonna take one more month to do it right, I don’t have a
problem with that, but Avenue A: I can see no reason for that not to be closed, whether
we are doing exchanging or do nothing else, Chris Fulcher owns the property on every
side of it.
“It goes nowhere, except dead-ends in his property... [words to the effect that
opponents envy Chris Fulcher]... no matter what we do, I think Avenue A should
be closed, and I’m prepared to do it tonight, unless the attorney feels like we need
to wait until next week.
“I’ve not heard nothing tonight that changes my mind on what we need to do. I
would love to proceed as quick as we can and close this out.
“But if Scott feels like we need to wait one more month I’ll go along with it.”

Sage: “Any further comment or questions? OK, Motion is postponing a decision and
complying with...”

Venturi: “Can we get an idea from the attorney...”

Scott Davis: “...You can bifurcate the street closing, if the board wants to. By separate
motion - you can determine tonight to close any portion that has been noticed, leaving the
remaining portion to be dealt with at some later date.”

Venturi: “I do agree with Sherill, I think Avenue A is nothing but a liability written all
over it. But we had a motion to move forward...”

Scott Davis: “And recognizing, I just wanna say this out loud;
“That if you determine later not to close the terminus of South Avenue, and you
close Avenue A tonight, It’s done. “And there’ll be nothing in exchange for that,
just purely a closing of Avenue A.”

Sage: “All in favor of the motion, say Aye.”

Johnson: “Aye”

Venturi: “Aye”

Styron: “What?”

Sage: 1:25:28 “All in favor of the motion for the Town to take the steps to comply with
section 260A-271, developing information on full and fair consideration. Say aye.”

Venturi + Michelle Bissette (Bissette): “Aye”

Sage: “Raise your hands to say aye... Motion carries, we will take the steps to comply
with the provisions of 160A-271.

Sage: “Motion to close Avenue A would be in order...*”

[*This move, following passage of motion to postpone confused both the audience and the Board.]

Summers: “I’ll do that one.

Summers: “I move that the Town of Oriental close the streets as indicated on this with the exception of the South Avenue terminus, on that motion that I handed out earlier, to close Avenue A and the other possible rights of way in the back portion of that property.”

Scott Davis: “Let’s edit that motion in the continuation of the discussion regarding the South Avenue terminus - is that part of your motion?
“You move to close Avenue A, it’d be nice in that motion to also continue the
deliberation in consideration - ”

Summers: “Let me restate the motion, if I may, Mr. Mayor.
“I’d like to move that the Town of Oriental close the following town streets, along
with any rights of way formerly indicated as being located in the area bounded by
the Western margin of the right of way of Wall Street on the East, the Neuse
River on the South, Smith and Raccoon Creeks on the West, and the Southern
margin of the right of way of South Avenue on the North - said street portions
being lawfully described as follows: Avenue A, and its got the other writing on
there, other possible rights of way, but to defer the closing of the South Avenue
terminus, to a specific date... the next full regular town meeting. The August
meeting.”

Sage: “Motion by Mr. Summers for this Board to close Avenue A and other possible
rights of way as described in the notice of intention in the area bounded on the West by Raccoon and Smith Creek, on the North by the South margin of South Avenue, on the East by the Western margin of Wall Street, and on the South by the Neuse River.
“Seconded by Commissioner Styron.”
“... and to continue consideration of the closure of the South Avenue terminus for
the August 2012 regularly scheduled Town Board meeting.

Scott Davis: “Another recommendation might be to further amend that motion to provide that you have found that closing the street is not land-locking property owners, and is not contrary to the public interest.*”
[*Another intervention by Town Attorney to include conclusions on matters not
discussed or deliberated on by Town Board.]

Sage: “Will you make an amendment?”

Summers: 1:29:29 “Yes, I will amend that... it is to the satisfaction of the Board after the hearing that closing the above-referenced streets are not contrary to the public interests, 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 a reasonable means of ingress and egress to their property.”

Sage: 1:29:43 Repeats Motion, asks for discussion;

Johnson: 1:30:25
“I can't imagine this transaction not happening next month. But
let's say it dies or goes away. What have we just done?

Styron: All we've done is close a street [or words to that effect].

Johnson: 1:30:25 Yes, but it's part of the transaction. If for some reason.[indistinct]

Sage: 1:31:20 Calls for vote. Announces motion passes, 4-1 (Johnson voting “nay.”
Noise in room, Sage gavels meeting.

Sage: 1:31:30 “Motion carries. An order will be entered closing the streets as described.”

South Avenue: What Has The Town Of Oriental Bought?

At meetings in June, Town Board members informed the public that the property offered by Mr. Fulcher in return for the Town closing certain public rights of way "now belong to us."

It's true. Even though the closings of Avenue A and South Avenue are under challenge in the courts, the Town has moved ahead with the deal. In late May, the transfer of property from one of Mr. Fulcher's Companies, Fulcher Point, LLC, was recorded at the Pamlico County Register of Deeds.

What did the Town get?

The deed itself is a "non- warranty deed." In other words, a quit claim deed. That means that whatever interest Mr. Fulcher may have in the property (if any) now belongs to the Town. No guarantees.

The property belongs to the municipal corporation, governed by the Board of Commissioners, in fee simple.

Can they sell it? Yes. All it takes is three votes on the Board and public notice.

Unlike Lou-Mac Park, there are no deed restrictions.

Is it dedicated to the public? No.

Can the Board dedicate it to the public? No. At the hearing of March 4 before Judge Alford, the Town's attorneys presented no case law supporting the contention that the Town can sell or trade a public right of way for something of value. But they made a very strong case, citing a case from the Town of Valdese in the 1980's, that future boards cannot be prevented from selling real property they own in fee simple. Nothing this Board does now can prevent any future Board from doing whatever they want with the land. There is no protection for the property as a public access point to the water, other than the will of the Board.

By the way, the Town Attorney told the Board at the public hearing on July 3, 2012 that there was no case law supporting what they were doing. "And we don't have any case law," he said, "that tells us what the magic recipe is." That should have set off alarm bells.

Is the property contaminated? Yes.

Fuel Tanks that subsequently spilled on Town's new property
(click photo to enlarge)

Some years ago, tanks containing 20,000 gallons of diesel fuel spilled its entire contents onto the property. There is no record that the contamination was ever cleaned up.


Are there other problems with the deal? Yes. Too numerous to mention.

Was the land swap lawful? The court case is going forward to the North Carolina Court of Appeals. They will have the final say.

Was the land swap wise? You decide.

More background here.

July 8th Hearing On Oriental Land Swap

Regular readers know that I filed a complaint last August against the Town of Oriental for bartering a public right of way (Avenue A) for a parcel of property.

Towns across the United States don't own public rights of way - they hold them in trust for the public. They may not sell rights of way, as the City of Los Angeles attempted to do in the 1920's. They may not barter a right of way.

This is as close to settled law as we have in municipal law.

But the Town of Oriental has put forward the novel proposition that they have the right to sell or exchange rights of way just like any other property they may own in fee simple. They even argued that legal theory in Pamlico County Superior Court and won dismissal of my complaint. Before the presiding judge entered his order, they closed a second public right of way (South Avenue) as a part of the exchange bargain.

I appealed the dismissal. Mr. Kirby Smith of New Bern is representing me in the appeal.

When the Town closed South Avenue, I filed a complaint about that action (there is only a thirty day window to complain).

The Town filed a motion to dismiss my South Avenue complaint and also filed a motion for sanctions against me for so filing.

The case was heard Monday afternoon. The judge did not grant either of the Town's motions. Instead, he stayed any further action on my complaint until after action by the Court of Appeals on my first complaint.

During the course of about a half-hour hearing, Judge Nobles seemed to understand my theory of the case enough to allow the possibility I might prevail. He utterly rejected the Town's motion for sanctions. "It is you who are at fault," he declared to Town attorney Scott Davis and Mayor Sage, "for the existence of two suits, not Mr. Cox."

He prudently decided to wait for the North Carolina Court of Appeals to act. I think it was a wise decision.

By the way, I am not the Lone Ranger in this effort. Many other residents of Oriental have supported and encouraged the effort at every step of the way.

Court Hearing(s) Update: July 8 Schedule

We've been a bit busy moving back into our hurricane damaged home Unfinished but livable), so I have made few posts. Here's what's new:

Town of Oriental has filed a motion to dismiss my appeal of the closing of South Avenue: On calendar for Pamlico County Court House at 2:00 pm July 8;
Kirby Smith, attorney retained to pursue my appeal of the order Judge Alford entered April 10 granting Town's motion to dismiss my appeal of closing of Avenue A, has filed a motion for a stay: On calendar for Pamlico County Court House at 2:00 pm July 8;
I have filed a motion for a temporary injunction against further actions by Town transferring rights of way to Chris Fulcher or anyone else until after completion of appellate process;
Town of Oriental has filed a motion against me alleging that I violated Rule 11 of North Carolina Civil Procedures and seeking sanctions: On calendar for Pamlico County Court House at 2:00 pm July 8.

Busy Monday at court next week.

Hearing On Town Of Oriental Motion To Dismiss: Cox v. Oriental

I just received notice from the Town's attorneys putting a hearing on the calendar for their motion to dismiss.

The hearing will be July 8 at 2:00 PM or as soon thereafter as possible. It will be held in the Pamlico County Court House. More detail later.

New Web Site About Suit Against Town Of Oriental

Readers may have noticed I haven't said much lately about the suit I filed against the Town of Oriental.

Mostly, I want the complaint to be processed in the courts. That's the only institution that can undo the Town's actions.

In the meantime, there has been a lot of information and misinformation about what I am doing and why I am doing it.

Here is a web site, ncpublictrust.org, that explains what is at stake. Take a look. If you have any questions, you can comment on this blog or send an e-mail to info@ncpublictrust.org. 

The site will be updated as new information becomes available.