Partial 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?”
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.”
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.
“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.
“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.”