Showing posts with label town government. Show all posts
Showing posts with label town government. Show all posts

Thursday, February 4, 2016

Rethinking The Oriental Growth Management Ordinance And Comprehensive Plan

Good for Janet Alexander.

A couple of days ago, she asked a good question on the Oriental Facebook site:

"Now what happens to the walmart property? Will the land be annexed to town before a new business moves in?"

A reader advised her to look at Town Dock.
She replied: "I have been reading town dock but did not see anything about the property being formally annexed to town."
Larry Summers commented: "The state legislature has substantially blocked any annexation except voluntary. They have even reversed some prior annexations. In addition,the Town of Oriental's Ordinance Changes five or six years ago prohibit any building over 6000 square feet. That would eliminate Walmart, Dollar General, Town and Country several of the churches and fish houses. The ones that are currently inside the town limits are grandfathered in."
Some thoughts:
1. We need to act now;
2.  Oriental's Growth Management Ordinance is just an ordinance and can be amended;
3.  Oriental's Long Range Plan omits any planning for annexation;
4.  Oriental has no business or commercial district - the town has only residential and mixed use;
5.  A decade ago the Town flubbed the ball on extra territorial jurisdiction (ETJ);
6.  NC general statutes still allow involuntary annexation - just with more hurdles;
7.  Without effective planning, we will continue to drift. 
These facts feed in to an obvious plan.

More later.
More later.

Monday, January 18, 2016

Wal Mart Revisited

Today's Town Dock posts an article from 2013 describing the Town Board meeting of October 1, 2013 addressing whether the Town should make water available to the planned Wal-Mart Xpress, to be located outside the Town.

Under North Carolina law, the Town was under no obligation to make the water available.

Here is the article:

Another article reports public discussion at Town Hall during a September special meeting:
During that meeting, Oriental Business owners spoke in opposition. Bama Lutes Deal, owner of the restaurant, Village Food Emporium, told the Mayor and Board that if they provide water to Walmart, the town "would be extending a courtesy to something that is a threat to your community. That,” she said, “seems counterproductive to me.”

If a business outside the town limits seeks water service from the Town, Deal said, the Board should first take in to consideration whether that store “would have a negative impact” on the in-town businesses. She suggested the Board had not looked closely at Walmart’s impact and was “missing the point of who it represented.”

Now less than three years later, Wal Mart is leaving town, but not before driving Town and Country and the Town's only pharmacy out of business and leaving the Town a shambles.  It seems we have not even begun assessing the damage.

I have a lot of thoughts about the consequences, but I think it is most important to consider carefully who we elect to our governing body.

I found the meeting of the Town Board held October 1 2013 shocking for a number of reasons. Most shocking is the disdain shown by that board to both the residents and the businesses of the Town.

None of the incumbents should have been reelected. Unfortunately some were and they continued to do damage to the Town's interests.

Too often when governments blunder, some incumbent will proclaim, "we can't undo what happened - let's just look to the future, not the past."

If it really made sense to not look back, we would just leave airplane wreckage on the mountain and send NTSB home. Instead, if we are wise, we see what lessons can be learned, including how to do better in the future.

I'll have more to say about that, but we must start by recognizing that Oriental has been badly served by some elected officials.

Friday, January 15, 2016

Wal-Mart To Close All Wal-Mart Express Stores - After Driving Our Local Grocery Stores Out Of Business

Today's Washington Post reports that Wal-Mart is abandoning its Wal Mart Express concept and closing all Wal-Mart Express stores.

This has been very damaging to Pamlico County's economy.

Let's hear from all those folks who cheered Wal-Mart on, citing all the new jobs and low prices.

Turned out to be a fantasy, but one that has played out for decades in small towns across America.

Some of us saw it coming.

Wednesday, December 2, 2015

Oriental Town Board Meeting

Last night's Town Board meeting saw the swearing in of one new commissioner, Allen Price, and the swearing in of our new mayor, Sally Belangia. Sally becomes our first woman to be sworn in as mayor. She wields her gavel well, and has a voice of authority.

I wish our new additions well.

Monday, November 2, 2015

Oriental's Exciting Election And Casey Stengel's Lament

Early voting turnout for Tuesday's municipal election in Oriental has been below that of recent years. Only four voters showed up Saturday, the last day of early voting.

I voted last week. I found this year's election exciting for two reasons:

1. We have a woman candidate for mayor, who is unopposed and who will change the atmosphere at Town Board meetings for the better;

2.  We have two new candidates for Town Commissioner who have never served nor run for commissioner in the past, who bring a new perspective. They will also improve the board.

I did not vote for any incumbent. I cast three write in votes for citizens who have served in the past and can be counted on in the future.  I wish more candidates had filed.

Liz and I attended last Thursday's agenda meeting at Town Hall. Maybe it's because of the World Series, but the meeting called to mind Casey Stengel's lament about the brand new New York Mets: "Can't anybody here play this game?"

A few specifics:

1. Mayor Johnson informed the Board that, based on the documents on file at the Pamlico County Register of Deeds, it is impossible for anyone to walk to or from Town Dock 2 without going through the private property of Chris Fulcher or of the Toucan. None of the commissioners seemed interested, even though this means the Town Attorney did not do his job two years ago;

2. The Town's official binder of minutes of closed sessions of the Board is still missing. None of the commissioners seem interested;

3. The commissioners made a joke of the fact that one of the commissioners had never made a motion in nearly two years as a commissioner. Certainly there is no requirement for commissioners to make motions or even to second someone else's motion, but still....

4. There was much discussion of Midyette Street (traffic calming measures, speed limits, patrol schedules, tickets, etc.) with no awareness of what the Town had done in the past to amend ordinances and to experiment with solutions. After two years in office, this suggests a previous lack of interest in such issues.

5. The Board seems a bit unclear that the Town Attorney works for the Board and not the other way 'round. I suggested to the Board eight years ago that the Board needs to understand the attorney,s legal theory and approach to litigation in order to provide guidance to the Attorney - since it is the Town, not the attorney, who is a party to the case. Still dissatisfied after I was elected to the Board, I initiated the following discussion on July 31, 2008:

"Commissioner Cox then voiced his opinion that Scott Davis has not fulfilled his professional
responsibilities to this town and that he has made egregious errors in a number of ways and
should be replaced. Commissioner Inger concurred with some of Mr. Cox’s comments and added
that she is disappointed that we are not a priority to him. She also suggested that the Board
should be more specific and ask to see documentation when he says things off the top of his
head. She asked that Mr. Davis be informed of the Board’s concerns. Mayor Sage suggested that
Mr. Cutler check to see what other law firms are available."

So far as I know, in the intervening years, the Town Board has never evaluated the Town Attorney's performance, as the county board does every year. This should be done.

Vote Tuesday! 

Think twice about voting for any incumbent! 

Send a message! 

Sunday, October 11, 2015

October 6 Town Board Meeting

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

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

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

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

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

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

Saturday, October 10, 2015

Oriental Town Government Incumbency Protection Program 1-3 Today

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 7, 2015

South Avenue: An Odor Of Mendacity

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

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

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

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

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

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

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

January 26, 2015

From: David Cox

To: Commissioners, Town of Oriental

Subj: South Avenue

Dear Commissioner:

As you are aware, I have filed an appeal of the Superior Court’s recent orders dismissing my challenge of the Board’s decision to close South Avenue.

I am writing to explain my appeal, to assess the current status and potential future paths for my challenge, and to describe a proposal I am submitting to the Town’s attorneys.

First, I must explain that my challenge to the Board’s closure of South Avenue is not identical to my challenge of Avenue A. If it were identical, I would not pursue the South Avenue challenge after the Court of Appeals decision in Avenue A, and I certainly would not appeal the case to the same court which upheld dismissal of the Avenue A case.

The difference between the two cases is that in Avenue A I complained of infringements on “public rights,” while in South Avenue I also complain of infringements on my private property rights. To understand the importance of this difference, it is helpful to look closely at what the Court of Appeals decided in Avenue A and what it did not decide.

The Court of Appeals limited its decision to determining whether my complaint and arguments qualified me as “a person aggrieved” as that term is used in the appeal provision of the street closure statute.

My basic argument in the Avenue A case was that I was a “person aggrieved” because:
1) the closure of Avenue A infringed on the rights of the public to use the public right of way;
2) I am a member of the public; and
3) I am “aggrieved” in the dictionary meaning of the term (“discontented”) with the closure.

The Court of Appeals did not accept this argument. Instead, the Court borrowed from cases defining the term “aggrieved parties” in zoning cases to decide that “any person aggrieved” in the street closure statute means:

“one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property.”

As the Court noted, I did not allege in my Avenue A complaint that the closure of that street caused any personal injury to my private property rights or damage my property value, but instead alleged only violations of “broad, public rights.” Given the Court’s definition of the term, it found that my “public rights” complaints did not qualify me as a “person aggrieved” under the statute.

The Court did not decide whether the Town’s deal with Mr. Fulcher and the closing of Avenue A pursuant to that deal was a lawful exercise of the Town’s legal authority.

The Court did not adopt the Town’s arguments that only abutting property owners may challenge street closures. If the Court believed that, it would have defined “person aggrieved” as including only persons owning property abutting the closed street.

The only thing the Court of Appeals determined was that because I had not included in my complaint any allegations that I had suffered personal injury to any private property interests of my own, I did not qualify as a “person aggrieved” within the meaning of the statute appeal provision of the statute.

The Court went out of its way to note (twice) that it was not ruling on my separate challenge to the South Avenue closure. In addition, the Court made it clear that if I did include allegations and arguments showing personal injury to my own private property interests in the South Avenue challenge I could qualify as a “person aggrieved” with standing to pursue that separate challenge.

Because I have alleged the South Avenue closure caused injury to my private property interests, and because I am arguing in this case, based on a long line of North Carolina Court of Appeals and Supreme Court decisions, that my property interests include a private property right in the South Avenue right of way, my South Avenue challenge satisfies the elements the Court of Appeals found lacking in the Avenue A challenge.

Unfortunately the Superior Court ignored the central ruling of the Court of Appeals’ Avenue A decision and the fact that my South Avenue challenge includes the elements required to show I am a “person aggrieved” with standing to appeal the South Avenue closure. This is unfortunate because it will now require an appeal to the Court of Appeals before the case can proceed to the next steps.

Keep in mind that the question before the courts right now is not whether the town acted within its authority in closing South Avenue. The question at this point is simply whether I am a person who can ask the courts to determine whether the town acted within its authority. I am confident that the Court of Appeals will find that my South Avenue complaint meets the requirements that Court set out in its Avenue A decision for establishing the right to have the courts review the closure.

While I believe that upon review of the Board’s closure vote, the courts will find that the Board did not comply with the statutory requirements for closing a street, at this point the issue under appeal is my right to have a court review whether the closure complied with the statute, and not the “merits” of whether it did comply with the statute.

That said, I am increasingly dismayed at the amount of taxpayer money which is being invested in delaying a trial on the merits of my challenge.

Though I would prefer that South Avenue be returned to its status as a street because I believe it is a superior open space and water access point compared with the “net-house” property, I do wish to present the Board with a proposal to end further legal proceedings.

I am therefore separately forwarding to the Town’s attorneys a proposal which would satisfy my most serious concerns about the Town’s deal with Mr. Fulcher, and also allow the Town to use the new property as a “replacement” public space and water access park.

My proposal would permit the kinds of plans the Board has been considering for the property, including attendant buildings and service potential. It would require that promises which the Board has already made about the property, but which have not yet been put into effect, be fulfilled.

In order to help you understand why I continue to challenge the South Avenue closure, and the purpose of some elements of my settlement proposal, here is an abridged version of what I will argue to the Court of Appeals if we are unable to reach a settlement.

My Private Property Rights in South Avenue

The Town’s attorneys have argued to the courts that the Town has a right to close public rights of way. I agree that a town may close a public right of way, if, and only if, the requirements of the closure statute are met. Obviously I do not agree that the statutory requirements were met in the closures of either Avenue A or South Avenue, or I would not have brought legal proceedings seeking to reverse those closures.

As explained above, the question I am currently appealing is only whether I have a right to ask the courts to determine whether the closure complied with the statute.

The Court of Appeals ruled in the Avenue A case that to establish my right to seek such a determination, I must complain that the closure injures my personal property interests.

Unlike my Avenue A complaint, my South Avenue challenge alleges that the closure injures my personal property interests. That complaint is supported by innumerable North Carolina court decisions over the course of more than 100 years which establish:

“It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys [any of] the lots … with reference to the plat… he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public.”

Purchasers of [such subdivision] lots … acquire vested rights to have all and each of the streets shown on the map kept open.”

To have deprived those who purchased lots with reference to the original map, and those claiming under them, of appurtenant rights in and to the streets, for the purpose of vesting such rights in another merely for private use would run counter to provisions of the Constitution of North Carolina, Art. I, Sec. 17, and to the 14th Amendment to the Constitution of the United States.”

Town of Blowing Rock v. Gregorie, 243 NC 366 (1956)(emph. added)

The “vested right” in subdivision streets acquired by subdivision lot purchasers are usually described as an “easement appurtenant” – this means property interest is an “easement” which is “appurtenant” (attached) to the purchased lot. The right not only belongs to the original lot purchaser – it is passed as part of the lot to subsequent heirs or purchasers of that lot.

While the above quotes from the Gregorie case describe these rights as arising when a subdividing landowner sells lots with reference to a plat, the same rights arise when such a landowner sells lots bordering on streets which are actually laid out and marked on the ground, or by reference to a map of streets adopted as an official town map. The principle is the same – when the landowner sells the lots according to a plan of streets, the right to use the planned streets is an inducement to purchase the lot, and is part of the value for which the lot purchaser pays.

The courts have also recognized that these rights to all of the planned streets arise when multiple landowners sell lots out of their respective lands according to a common street plan. A purchaser of a lot from one landowner’s property obtains rights in the planned streets which cross the other landowners’ properties if both landowners are selling according to the same street plan.

This is what happened in Oriental in 1899. All of the owners of properties within the original town sold lots according to a plan of streets laid out and marked on the ground, and later surveyed and mapped by the Town. Oriental’s founding landowners agreed in concert to develop their properties according to this common plan. Because all of Oriental’s founding landowners cooperated in selling lots according to that plan, all lot purchasers obtained appurtenant easements in all of the planned streets, including the portion of South Avenue leading to Raccoon Creek.

Mr. Clark Wright, representing the Town, acknowledged to the Superior Court that subdivision purchasers obtain such rights. Mr. Wright, however, asserted that these rights simply do not apply when a town closes a street, and that I therefore do not have standing to challenge the closure. I believe Mr. Wright is incorrect and his assertion is not supported by case law.

As for the merits of the case, should we ever reach that point, in certain limited circumstances a town may close a street even though the closure interferes with private appurtenant easements. Otherwise there would be no purpose to the street closure statute. For example, in the 1965 case of Wofford v. NC State Highway Commission, the North Carolina Supreme Court recognized a narrow “public interest” exception to “takings” claims, based on legitimate exercise of the state’s police powers.

This narrow “public interest” exception is the source of the “public interest” language in the street closure statute. As Professor David Lawrence points out, the purpose of the statute is to prohibit towns from closing streets if such closures would give rise to compensable takings in violation of the U.S. and North Carolina Constitutions.

You may disagree with my position that the closure of South Avenue was not within the “public interest” exception allowed by the closure statute. It may be that the courts ultimately disagree with me on that question. But that question is not related to whether I have standing to have a court determine the matter.

The purpose of the appeal provision of the closure statute is to allow a court to review whether the closure complies with the provisions of the closure statute, including the “public interest” provision. The Court of Appeals’ Avenue A decision held that the question of whether or not I have standing is determined by whether or not I have claimed a property interest in the “affected property” or damage to my property value that is different from the rest of the community, not whether the Town has the right to close a street despite such property interest or damage.

It is very clear under North Carolina case law that I own a vested private property interest in the South Avenue right of way as a subdivision lot owner. The elimination of that right of way necessarily reduces the value of my property interest, particularly considering the water access rights included in that right of way. This meets the Court of Appeals’ definition of a “person aggrieved” with standing to bring an appeal of the street closure.

In a series of protracted court battles, subdivision owners with private appurtenant easement rights in the public streets of the Town of Oak Island successfully challenged that town’s attempts to misuse subdivision water-front street ends for non-street purposes (construction of parks), and I believe the Court of Appeals will apply the same reasoning and hold that I have standing to challenge Oriental’s closure of South Avenue.

Whether the Town acted lawfully in closing the street pursuant to its deal with Mr. Fulcher will then be directly before the courts.

Because the Town closed the street in order to benefit Mr. Fulcher and to acquire valuable real property which the Town may at any time close off to the public, or lease or sell to private interests in order to raise revenue, I believe the closure constitutes an unlawful taking of my Constitutionally-protected property rights without due process and compensation.

While I could seek compensation for that taking in inverse condemnation proceedings, I instead prefer to have South Avenue continue to be available, which is why I have sought a reversal of the Board’s closure vote.

My Proposal for Settlement of Litigation

The agreement between the Town and Mr. Fulcher stated that after the closure of South Avenue, Mr. Fulcher would “rededicate” a portion of South Avenue leading to the new property acquired by the Town. So far as I can tell, this has not been done. The deed transferring the new property to the Town describes the entire parcel as a fee simple conveyance to the Town.

The Board unanimously adopted a resolution declaring its intent “that any property obtained by the Town of [Oriental on] Raccoon Creek, as a direct or indirect consequence of closing the right of way on South Avenue, will be dedicated as a public park, with public Water Access on Raccoon Creek.” No such dedication has occurred.

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

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

David R. Cox

Cc: The Honorable Bill Sage, Mayor


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

Here is what I wrote about it in 2009.

Sunday, September 6, 2015

Disappeared Records Of Closed Sessions

I haven't written lately about the "disappeared" records.

To tell the truth, I am not quite sure where we stand on this.

A week ago, at the Town Board's "agenda" meeting, the Town Board unsealed some records. At least two of them seemed to have been cobbled together from notes kept by the Town Attorney and a newly-discovered draft of the 9 July 2012 meeting in the possession of former mayor Bill Sage.

The binder of closed session minutes which had been kept by the Town is still missing. It was last seen by the Town Manager around July 2d and was discovered missing around July 16.

I surmise that someone with access to Town Hall removed the binder to keep it out of my hands. What that person or persons hopes to conceal is a mystery.

The Town Manager and Mayor Johnson have done their best to reconstruct the missing records, and I applaud them for the effort.

The fact remains, however, that the binder containing closed session minutes is no longer within the possession, custody and control of The Town; the accuracy of reconstructed records can't be substantiated; and there is no chain of custody. This includes records of closed sessions concerning some very sensitive personnel matters. Anyone whose affairs were discussed in closed sessions should be concerned.

As for the records I requested: nothing I received so far records legal advice given to the Town, there is no explanation of the Town attorney's legal theories and no record of any questions asked by the Town Board concerning any of the many legal issues in the case.

What is not in the record reveals more than what is in the record about the lack of oversight by the Board over the effort by the Town's attorneys.

I will have a lot more questions about that.

Friday, August 14, 2015

Thursday, August 13, 2015

Is It Just Me? Or Is It Something I Said?

In recent posts, I have raised the problem of missing records of closed sessions of the Town Board relating to South Avenue and Avenue A.

I knew that sounded familiar, and mentioned that I thought the same thing happened before.

It did.

As I reviewed old blog posts, I find that the LAST time I requested closed session records concerning South Avenue (Town of Oriental v. Henry), the binder of closed session records went missing. That was in 2009, 6 years ago, before that year's municipal elections.

The rule seems to be, that every time I ask for closed records concerning South Avenue, the records disappear.

After the 2009 election was over, the closed session minutes mysteriously reappeared.

Here is my blog entry concerning the prodigal documents.

Tuesday, August 11, 2015

Town Of Oriental Releases (Some) Records Of South Avenue Closed Meetings

Last night, a special meeting of the Town of Oriental Board of Commissioners voted to release some of the records of closed meetings concerning South Avenue that I requested in June and July.

There appear to be some anomalies. I will probably have more to say about them later. One anomaly was mentioned last night by Town Dock.

At least two of the records I requested have not been provided: 1) the record of the closed meeting of January 13, 2012, which was the first Board action revealing the idea of "sale or exchange" of real property; and 2) the closed meeting of July 9, 2012, which has never been explained. Not only that, the Town of Oriental web site does not include any minutes of the open portion of the special meeting held that date, recording the motion to go into closed session and the reasons therefore.

My own blog entries for July 9, 2012 record the only information ever provided to the public about that meeting, which lasted for an hour and a half. I do know that at the August meeting of the Board the Board approved minutes for the July 3 public hearing on South Avenue that falsify what went on at that meeting. I have the Town's own audio recording of the July 3 meeting.

Wednesday, August 5, 2015

Town Of Oriental Can't Produce Requested Documents

Interesting Town Board Meeting tonight.  Raised more questions than it answered.

1. Why was the Board in such a hurry that they appointed Warren Johnson as mayor during last Thursday's Agenda meeting rather than at today's monthly Town Board meeting where such business is normally conducted? Especially as Warren wasn't at tonight's meeting due to a previously planned vacation? Was it an effort to keep something from happening? I don't know.I certainly have no objection to Warren's appointment, but it might have made more sense to appoint Sally Belangia, who is running unopposed for the office in November.

2. Why is the Town unable or unwilling to provide the records of closed session meetings that I requested over the past two months? Unable in some cases because the requested records have mysteriously disappeared. Is this a case of deja vu all over again? Some may recall records mysteriously disappearing when Randy Cahoon was Town Manager a few years ago, apparently removed by someone with access to the manager's office. As I recall, the disappearances ceased after Randy changed the locks. Thoday's Board was unwilling to provide some records that are not missing, even though there is no apparent legal justification for continuing to withhold them. What is the Board trying to cover up? I seem to recall the previously missing records reappeared after that year's elections.

Here is what I asked for:

June 2, 2015:

Request for Records of Closed Meetings of Oriental Town Board-member

To: Town Manager

From: David R. Cox, 409 Academy Street, Oriental, NC 252 646 5543,

I hereby request copies of the minutes of all closed sessions in which the Town's agreement with Chris Fulcher or my suits against the Town of Oriental were discussed, as well as all “general account[s] of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative. Or video or audio recording.” NCGS 143-318.10(e). Such minutes and accounts are public records under GS 132-1, provided that they may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.

Attached is a copy of a Merorandum (sic) to me from Mayor Sage denying a previous request of mine for records of closed meetings. I note that his assertion that records of closed sessions “are to be kept sealed” until the Town Board of Commissioners votes to open them to the public is not supported by the plain language of the statute. There is no provision giving the Town Board discretionary authority to keep the records sealed.

My request includes but is not limited to the following closed sessions:

1. January 13, 2012

2. February 7, 2012

3. February 10, 2012

4. July 9, 2012

5. September 4, 2012

I am continuing to review the Town's published minutes to compile an additional list of closed sessions for which I want the records.


David Cox

July 16, 2015:

 Article 33C.
Meetings of Public Bodies.
§ 143-318.9.  Public policy.
Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly. (1979, c. 655, s. 1.)

§ 143-318.10.  All official meetings of public bodies open to the public.
(a)        Except as provided in G.S. 143-318.11, 143-318.14A, and 143-318.18, each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.
§ 143-318.11.  Closed sessions.
(a)        Permitted Purposes. - It is the policy of this State that closed sessions shall be held only when required to permit a public body to act in the public interest as permitted in this section. A public body may hold a closed session and exclude the public only when a closed session is required:
(1)        To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes.
(2)        To prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award.
(3)        To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded.
(4)        To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations, or to discuss matters relating to military installation closure or realignment. Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.
(5)        To establish, or to instruct the public body's staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract.
(6)        To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.
(7)        To plan, conduct, or hear reports concerning investigations of alleged criminal misconduct.
(8)        To formulate plans by a local board of education relating to emergency response to incidents of school violence or to formulate and adopt the school safety components of school improvement plans by a local board of education or a school improvement team.
(9)        To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity.
(b)        Repealed by Session Laws 1991, c. 694, s. 4.
(c)        Calling a Closed Session. - A public body may hold a closed session only upon a motion duly made and adopted at an open meeting. Every motion to close a meeting shall cite one or more of the permissible purposes listed in subsection (a) of this section. A motion based on subdivision (a)(1) of this section shall also state the name or citation of the law that renders the information to be discussed privileged or confidential. A motion based on subdivision (a)(3) of this section shall identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session.

§ 143-318.10.  All official meetings of public bodies open to the public.

(e)        Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions held pursuant to G.S. 143-318.11. Such minutes may be in written form or, at the option of the public body, may be in the form of sound or video and sound recordings. When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings. Such minutes and accounts shall be public records within the meaning of the Public Records Law, G.S. 132-1 et seq.; provided, however, that minutes or an account of a closed session conducted in compliance with G.S. 143-318.11 may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.  (1979, c. 655, s. 1; 1985 (Reg. Sess., 1986), c. 932, s. 4; 1991, c. 694, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 570, s. 1; 1995, c. 509, s. 135.2(p); 1997-290, s. 1; 1997-456, s. 27; 2011-326, s. 8.)

In accordance with the above provisions on North Carolina General Statutes, I hereby request the following public records:

A. The minutes and any general account of the following closed sessions of the Town of Oriental Town Board pursuant to NCGS 143-318.11, including both written records and accounts and any video or audio records such that a person not in attendance would have a reasonable understanding of what transpired. These records are required to be kept in compliance with NCGS 143-318.10(e).

The requested records relate to closed sessions concerning two complaints filed by me in the Pamlico County Superior Court against the Town. In view of the fact that these complaints have been settled, the withholding of these public records would no longer frustrate any purpose of the closed sessions in question. The request includes but is not necessarily limited to records of the following closed sessions:

1. February 20, 2013;

2. July 18, 2013;

3. August 6, 2013;

4. September 2, 2013;

5. December 2, 2014;

6. March 3, 2014.

7. In addition, I request a copy of the minutes of the Town Board of Commissioners to which the terms of the settlement have been entered as required by NCGS 143-318.10(3).

Wednesday, July 8, 2015

Cox v. Town Of Oriental: The Real Story

A lot of nonsense has been promulgated by Oriental Town Government about why I filed suit against the Town over closing of Avenue A and South Avenue.

It was about taking away public rights, but it was very much about defending private property rights.

I call it a swindle. It can also be called theft. Constitutionally, it was a "taking." Takings can be lawful, if taken for a public purpose. But this was neither an exercise of eminent domain nor an exercise of the state's "police power." The only other circumstance in which a street closing is clearly authorized by case law is if all the property owners in a subdivision agree to it.

The Town's attorney Clark Wright knows this. Mayor Bill Sage knows this. But they wanted to do what they did, and they didn't even want to protect public access to the "donated property" by a public dedication, a deed restriction, or any other measure that would protect the public in the future.

It changed the face of the Town forever, and since I have now withdrawn my suit, it can't be undone by the courts, even if it is unlawful.

It isn't really complicated, but the Town Board and its attorneys spent (they say) $80,000 to protect the deal by keeping it from the Court of Appeals.

Here's my story:

Thursday, June 11, 2015

Do ItYourself Legal Proceedings

I don't know, but I've been told that it was Mayor Bill Sage who wrote the Town of Oriental "Press Release" printed on the front page of the Pamlico News last March 17.

Mayor Sage did not explain, though he knows full well that the Court of Appeals decided that I could not be a "person aggrieved" in the case of Avenue A only because I did not claim personal injury. That's all. It was a rookie mistake in my brief. He also knows full well that the Court of Appeals explicitly explained (twice) that its decision on Avenue A does not apply to South Avenue. He also knows that my complaint concerning South Avenue does claim personal injury, thereby meeting the Court's criteria for being a "person aggrieved" and therefore having standing to bring the case and have it heard on its merits. To anyone paying attention, it could not have been "unimaginable" that I filed the second suit. In fact, Judge Nobles shook his finger at the Town's attorney and admonished him that "it is your fault that Mr.Cox had to file a second suit." That's a matter for a separate discussion.

In his diatribe, the mayor seemed specially annoyed that I represented myself pro se. He mentioned it twice. I do want to address that.

It is true that I am not an attorney. It is also true that I couldn't afford to retain an attorney. But I am not a complete stranger to legal proceedings. Or to legal standards concerning public officials. I am a naval officer. Law is a part of my profession.

I was seventeen years old learning to be a naval officer when it was impressed on me that public officials (including ship captains and admirals) have only those powers granted to them by law and regulation. My very first course in naval matters introduced me to US Navy Regulations 1948, the Uniform Code of Military Justice, the Judge Advocate General's Manual and the Manual for Courts Martial. This body of knowledge was expanded over the next four years to include International Law and Law of the Sea.

When I was commissioned in 1958, all of the Navy's routine legal matters were handled by seagoing officers. We had no specialized corps of lawyers until 1967. I was assigned to USS Cabildo (LSD-16) as navigator, but I was also the ship's legal officer, administrative officer and personnel officer. Those three collateral duties all involved dealing with law and regulation. In Court Martial proceedings, I normally was trial counsel, but also occasionally was asked to serve as a sailor's defense counsel.

Later in my career I served as president of courts-martial, acted as investigating officer in JAG investigations and was awarded advanced degrees in international law and diplomacy. As a specialist in politico-military policy, I worked closely over the years with military and civilian attorneys in the Office of The Chief of Naval Operations, the Office of the Secretary of Defense, the Department of State and the Judge Advocate General.s Office of International Law.

After I retired from the Navy and was a founder of an information technology company, I represented the company in a GAO bid protest hearing where the other party was represented by the biggest government contract law firm in DC. I prevailed.

I mention these things not to claim that I have skills as good as those of a licensed attorney, but only to suggest I am not a complete novice in legal affairs. My advice to the Town Board should not have been rejected out of hand.

Had I been able to afford to retain counsel, my case would still be going forward.

Monday, April 27, 2015

South Avenue And Watergate

Last month, the Town of Oriental issued a "press release" ostensibly announcing a settlement agreement between me and the Town of Oriental ending my law suit against the Town concerning the closing of South Avenue. I have no direct knowledge of the anonymous author of the "press release," but that person inadvertently hit on the essence of my suit by tying it to Watergate.

The connection? Neither Richard Nixon in 1972 nor Mayor Sage and the Town Board in 2012 wanted their hands tied. Mayor Sage put his concerns in writing here. I called my post of July 3, 2012 "The Heart of The Matter." It remains the heart of the matter.

I was seventeen years old, learning to be a naval officer, when it was first impressed on me that government officials, even naval officers, were constrained by law. That's what Rule of Law is about - tying government's hands. That's what Senator Sam Ervin thought, and I am proud to join his company.

For what it's worth, I served in the Pentagon from 1972 through 1975, had a good friend on Vice President Ford's staff, three friends on the National Security Council staff, and was good friends with some Republicans in high places. I had no inside knowledge, but knew a bit more than the Washington Post printed. It was about Rule of Law.

FOR IMMEDIATE RELEASE—March 17, 2015—Oriental, NC
To paraphrase Gerald Ford, “Our long David Cox nightmare is over.” A full release including a dismissal with prejudice of all lawsuits and appeals filed against the Town by Oriental resident David Cox has been executed by Cox and Oriental Mayor Bill Sage on behalf of the Town...."
I'm not sure the author of the Town's press release, who concealed his or her identity, really understood Watergate. For those whose memory is a bit hazy, here's a link to a musical account of the scandal.

Haldeman, Ehrlichman, Mitchell and Dean
Performed by The Creep
Recorded 1973
Written by Bob Warren

We're Haldeman, Ehrlichman, Mitchell and Dean
The way we've been treated is really obscene
To think that a bug worth hardly a shrug
Could end up by getting us tossed in the jug
We all got the gate for no reason or rhyme
You'd think we committed some horrible crime
Our minds may be dirty but our hands are clean

We're Haldeman, Ehrlichman, Mitchell and Dean
We're Haldeman, Ehrlichman, Mitchell and Dean
Our job was to see that the White House stayed green
We might have had flaws, like bending the laws
But God only knows it was for a good cause

There's no power shortage where we were concerned
And what little profit resulted we earned
For lovelier fellows you never have seen
Than Haldeman, Ehrlichman, Mitchell and Dean
We're Haldeman, Ehrlichman, Mitchell and Dean
Our pasts have been fat but the future looks lean
With back to the wall, we're taking a fall
But dammit we only robbed Pete to pay Paul

Just when we were getting to be well-to-do
The Watergate turned into our Waterloo
And now everybody is out to demean
Poor Haldeman, Ehrlichman, Mitchell and Dean
Yes we're Haldeman, Ehrlichman, Mitchell and Dean
We're perfectly willing to spill every bean
We've nothing to hide, with God on our side
He knows we were only along for the ride

And so it will come as a terrible blow
There's one little thing that we think you should know
Whatever we say isn't quite what we mean
We're Haldeman, Ehrlichman, Mitchell and Dean

Oh yes we're Haldeman, Ehrlichman, Mitchell and Dean
Things won't be the same when we're gone from the scene
But people will still recall with a thrill
A sell-out performance on Capitol Hill
It just isn't fair to take all of the blame
When all we were doing was playing the game
Now all of Washington's caught in-between
Haldeman, Ehrlichman, Mitchell and Dean

[lyrics transcribed by listening. Send corrections via the contact link on the main page]

Friday, April 24, 2015

Oriental Town Board Official Minutes Of July 3, 2012 Meeting

For those nitpickers who pay attention to the Oriental Town Board, it may prove enlightening to compare the verbatim record of the Board's discussion (July 3, 2012) of closing of Avenue A and South Avenue with the approved minutes.  I find little or no similarity. Here are the official minutes (below). Here is the transcript of the actual recorded discussions.

Town Board Meeting-July 3, 2012 1 of 3 

Town of Oriental Town Board Meeting July 3, 2012 

A regular scheduled meeting of the Town of Oriental Town Board was held at Oriental First Baptist Church, July 3, 2012, beginning at 7:00pm.

Present: Mayor Sage; Commissioners Bessette, Johnson, Summers, Styron, and Venturi; Town Manager Maxbauer; and Bylon Whitsett.

Absent: None Mayor Sage determined that a quorum was present. He opened the meeting and led the Pledge of Allegiance.

MOTION: Commissioner Summers made a motion to approve the agenda as presented. Commissioner Styron seconded. Motion passed. 5-0

MOTION: Commissioner Summers, with regards to the consent agenda, made a motion to approve the minutes from June 4, 2012. Commissioner Venturi seconded. Motion passed. 5-0 The minutes from June 5, 2012 were pulled from the consent agenda for review.

MOTION: Commissioner Venturi made a motion to approve the June 5, 2012 Budget Workshop minutes and the June 5, 2012 Town Board Meeting minutes. Commissioner Summers seconded. Motion passed. 5-0 The minutes from June 11, 2012 were corrected to read in paragraph 5 that Commissioner Venturi made the motion and not Commissioner Bessette.

MOTION: Commissioner Summers made a motion to approve the June 11, 2012 minutes as corrected. Commissioner Bessette seconded. Motion passed. 5-0 The Council discussed the modifications to the Contract Agreement regarding South Avenue/Avenue A. It was noted that all modifications applied only to the attachments.

MOTION: Commissioner Summers made a motion to accept the amendment to the agreement and to authorize and direct the Mayor and Town Clerk to sign it.. Commissioner Venturi seconded. Motion passed. 5-0

MOTION: Commissioner Summers made a motion to open the public hearing. Commissioner Styron seconded. Motion passed. 5-0 The following people spoke at the public hearing for the proposed street closures: Town Board Meeting-July 3, 2012 2 of 3 1. David Cox 2. Barbara Stockton 3. Jim Privette 4. John Zeren 5. Bob Miller 6. Bill Marlowe 7. Bob Pittman 8. Clare Pittman 9. Fay Midgette Bond. 10. David White 11. Marshall Tyler 12. Ken Brandon 13. Ken Midyette 14. Dawn Hines 15. Dee Sage 16. Pat Herlands 17. Irma Bond-Maxbauer 18. Grace Evans 19. Ben Cox 20. Art Tierney 21. Jennifer Roe

MOTION: Commissioner Johnson made a motion to close the public hearing. Commissioner Bessette seconded. Motion passed. 5-0 Mayor Sage reviewed various options for the street right of way closure and acceptance of property. There was some question as to whether or not the transaction would be considered an exchange.

MOTION: Commissioner Summers made a motion to find that none would be deprived of reasonable access to their property and that it is not contrary to the public interest to close Avenue A. Commissioner Styron seconded. Motion passed. 4-ayes (Summers, Venturi, Bessette, Styron) 1-nay (Johnson) Town Manager Maxbauer stated that the town needs to make sure that we retain a public utility easement on Avenue A.

MOTION: Commissioner Summers made a motion to reserve all public utility easements on Avenue A. Commissioner Venturi seconded. Motion passed. 5-0 The town attorney pointed out that the state statute requires ten days notice of an exchange being contemplated by the town board and that a statement of value be included in the notice. Regarding South Avenue, there was some discussion regarding the values in connection with an exchange and whether an independent professional appraisal be made.

MOTION: Commissioner Venturi made a motion to pursue hiring an independent professional appraiser to report back at the next council meeting. Commissioner Johnson seconded. Motion passed. 3-ayes (Venturi, Johnson, Bessette) 2-nays (Summers, Styron) There was some discussion regarding the annexation of property owned by Jerome Buckman. The Town of Oriental Planning Board presented a recommendation to pursue the annexation and zone it as R1. Town Board Meeting-July 3, 2012 3 of 3

MOTION: Commissioner Johnson made a motion to set the public hearing date to hear concerns regarding the annexation for August 7, 2012. Commissioner Styron seconded. Motion passed. 5-0

MOTION: Commissioner Summers made a motion to direct Town Manager Bob Maxbauer to sign the RESOLUTION OF INTENT TO ANNEX PROPERTY OWNED BY JEROME L. AND ELIZABETH M. BUCKMAN, WHICH IS NON-CONTIGUOUS TO THE EXISTING MUNICIPAL BOUNDARIES OF THE TOWN OF ORIENTAL and the RESOLUTION DIRECTING THE CLERK TO INVESTIGATE A PETITION RECEIVED UNDER G.S.160A- 58.1. Commissioner Venturi seconded. Motion passed. 5-0 During the public comment period, Ben Craven spoke about a fence being removed by the Town. The Town Manager reiterated to Mr. Craven the fence was on Town right of way and removal was an action decision of the Board. The porch encroachment issue on the Baskerville property on Midgette Street was commented on by Al Herlands. The matter of reappointments to the Parks & Recreation Committee were discussed.

MOTION: Commissioner Venturi made a motion to reappoint Sue Magnuson and Jim Edwards. Commissioner Summers seconded. Motion passed. 5-0 There being no further business, Commissioner Bessette made a motion to adjourn. Commissioner Johnson seconded. Motion passed. 5-0. Meeting was adjourned. 

 ______________________________ William R. Sage, Mayor 

 ________________________________ Robert J. Maxbauer, Town Manager