Vegetative Waste: A Case Study

Early last week, at Oriental's Town Board meeting, Commissioner Warren Johnson presented a "show and tell" demonstration of the vegetative waste bags the Town had procured, at a cost of about $4,000.

The "show part" was to demonstrate the enormous size of the reusable bags. Johnson called on the acting Town Manager, Wyatt Cutler, to assist him in spreading one of the bags out. The bag looked to have a capacity of about 100 cubic feet. It presented a rare dramatic photo opportunity, and newspaperman Jeff Aydelette of County Compass took full advantage. Jeff's photo graced one of County Compasses' inside pages. Pamlico News also reported the story.

The "tell" part was when Commissioner Johnson described the process and the cost to the Town. He related in amazement his discovery that Town Public Works employees were delivering bags to residents on request (tying up the employee for the time it takes for delivery) and then returning to pick up the bags full of waste, including branches as large as three inches in diameter.

Since a full bag could weigh hundreds of pounds, it might require a front loader to retrieve the bag. Once retrieved, the Town would have to pay for disposal of the waste.

Members of the public had a big laugh at the description, and the Board quickly voted to suspend the program while the Acting Town Manager examined options.

While both local newspapers reported what happened during the meeting, neither reported the rest of the story - or what might be called the "back story."

The idea of vegetative waste bags was first broached by Town Manager Bob Maxbauer at the Town Board's first retreat at River Dunes in January, 2012. Only three members of the public attended that session. As presented, the bags would be obtained at very little cost, and the vegetative debris would be deposited in a Town compost heap.

The "very little cost" turned out to be around $4,000 and the compost heap was never created.

Occasionally during meetings of the current Board, Town Manager Maxbauer made seemingly hostile remarks directed at Commissioner Johnson. Perhaps he apologized afterwards. I have no way of knowing.

I don't know if there is any connection between these events and Commissioner Johnson's pointed criticism of the vegetative waste project.

Investigative journalists might want to check it out.

Tony's Back

There is always a bit of an empty spot in public discourse when Tony Tharp's blog disappears, as it did a week or so ago.

I don't read him because I agree with him, though I often do. I read him because he makes me think.

That's a good thing.

Today he says he has made his last comment on Oriental politics for awhile.

I hope that isn't true.

Nevertheless, there are bigger and perhaps more interesting fish to fry in North Carolina politics.

What is happening in this state is worthy of Tony's analytic talents.

What do you suppose he means by "worth plowing through?"

Town Of Oriental Board Meeting August 6, 2013

NCGS Section 160A-81.1:

"The council shall provide at least one period for public comment per month at a regular meeting of the council. The council may adopt reasonable rules governing the conduct of the public comment period, including, but not limited to, rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing. The council is not required to provide a public comment period under this section if no regular meeting is held during the month. (2005‑170, s. 3.)
Sections:  Previous  160A-75  160A-76  160A-77  160A-78  160A-79  160A-80  160A-81  160A-81.1  160A-82  160A-86  160A-87  160A-101  160A-102  160A-103  160A-104"

At the beginning of last night's Town Board meeting, Mayor Bill Sage announced that he wants to try scheduling public comment at the monthly agenda meeting, held the Thursday prior to the regular (monthly) meeting. He explained this would afford more time for such comments.

A reading of NCGS 160A-81.1, which establishes the statutory requirement for public comments, reveals some interesting things:

1. The public comment period must be during a regular meeting of the council. It isn't clear that the agenda workshop, at which no business is conducted, meets the statutory requirement. Of course, nothing prevents the council from providing more than the minimum requirements for public comment;

2. It is the council, not the mayor, who may adopt "reasonable rules" for the conduct of the public comment period. I don't remember the council ever doing this.

Board members may assume that setting the rules is part of the mayor's duties as presiding officer, but that seems not to be the case. Another of those pesky technicalities.

Probably easily fixed.

July 3 2012: Minutes And Transcript Compared

A week or so ago, I posted a transcript of the Town's audio recording of the Board's deliberation on July 3 of 2012 concerning street closings: here.

The accepted standard for complete minutes of public meetings is that the minutes should record what was DONE, (that is, motions and resolutions made, seconded, votes recorded, etc.) rather than what was SAID. By that standard, the Town's minutes for July 3 are not acceptable. Compare the audio recording above with the published minutes on the Town's web site here.

The minutes change the order of events and misrepresent the wording of the motions voted on and adopted.

I must say, the only commissioner in recent years who has compared the minutes with the audio and insisted on accuracy was Jennifer Roe. These particular minutes, on a matter of great importance and significance to the Town, are NOT accurate.

As we start thinking about forthcoming municipal elections, we should remember to keep the handling of public records in mind.

My Thoughts Of A Year Ago On South Avenue

In the interest of informing the public about the South Avenue case, I thought it would be useful to share a letter I sent to the mayor and Town Board last June 15, more than two seeks before the Board hearing on closing Avenue A and South Avenue. This was one of a series of similar communications to Town officials that I had sent starting January 28, 2012.

I had hoped by bringing legal precedents to the Board's attention that they would proceed with caution.

It didn't work. Here's the letter:

David R. Cox

409 Academy Street

Oriental, NC 28571

252-249-7219

June 15, 2012

The Honorable William Sage

Mayor, Town of Oriental

507 Church Street

Oriental, NC 28571

Re: Proposal to Vacate South Avenue and Avenue A and Agreement between the TOWN OF ORIENTAL and G.CHRISTOPHER FULCHER et al

Dear Mr. Mayor:

I oppose the contract approved by the board of commissioners of the town of Oriental on May 17 between the town and Mr. Chris Fulcher. I oppose it not because of the resulting shape and size of the property accruing to the town, though I think a better result could have been negotiated.

I oppose it because it violates a fundamental principle of right of way law: “the governing body shall not sell or barter the streets and alleys which it holds in trust for the benefit of the public.”

I have no specialized legal resources, but have easily located authoritative legal references confirming that a town may not sell or barter a public right of way:

"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),

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

Eugene McQuillin, Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument.” The power to maintain and regulate the use of  the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);

The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, and transforms the town into a proprietor rather than a trustee of public streets.

This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the public, liberally construed for its benefit, strictly construed to its detriment." McQuillen at 569.

One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes any temptation for the governing body to divest itself of rights of way held in the public trust for short term fiscal benefit.

To barter this town's most irreplaceable  long-term asset - public access to the public trust waters of our harbor - for real estate held in fee simple, will inevitably tempt future town boards to sell the resulting waterfront property to meet short term fiscal needs. Once sold, the public will never get it back. Ever.

To barter a right of way, dedicated in perpetuity by Mr. R.P. Midyette for the purpose of public access to the water, for a parcel of unrestricted real estate which a future board of commissioners could sell without even a public hearing does not protect the public interest.

Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"

Why? Because our rights of way are held in trust.

Town Boards may not always keep the town's future in mind. We need to help them do so.

There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.

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

Sincerely,

David R. Cox

CC: Mr. Sherrill Styron, Commissioner

Mr. Warren Johnson, Commissioner

Mr. Larry Summers, Commissioner

Ms. Barbara Venturi, Commissioner

Ms. Michelle Bissette, Commissioner

Mr. Robert J. Maxbauer, Town Manager

Do You Know Who Your Commissioner Is?

Recent arrivals to the Town of Oriental sometimes ask: "who is my commissioner?"

Good question. The short answer is: "you don't have one."

One of the consequences of the fact that we elect all of our Town Commissioners at large is that no commissioner represents any particular part of Town. You can't, for example, call Commissioner Jones and say, "there is a pothole on my street that needs repair" and be confident that Commissioner Jones will look into it because he represents your district.

Our system of government, in other words, is not inherently responsive to citizen concerns.

This situation has been exacerbated in recent years by the Town Board's refusal to engage in exchanges of information with citizens at public meetings. Not only does this show a lack of respect for the public, it frequently deprives the Town Board of insights and information it needs in order to do its job.

There is a better way.

North Carolina General Statutes allow towns to modify their charters by ordinance. Such ordinances must pick from a menu of choices, and may allow a referendum on each change made.

One of the choices is to elect commissioners from districts, or a mix of commissioners from districts and at large.

I recommend a mix of three commissioners elected from districts representing equal numbers of residents plus two elected at large.

That way, we would each know who our commissioner is.

Public Access To Water: Big Problem On Chesapeake

Chesapeake Bay: 11,684 miles of shoreline, equal to the distance of the entire West Coast, from Mexico to Canada. But only 2% of it provides public access to the water.

Good article in yesterday's Washington Post about the problem and efforts to correct it. Some describe the Chesapeake as a large gated community.

It's hard to correct a problem this size. Once public access points are in private hands, the public never gets them back.

That's why Oriental's citizens have fought so hard to keep public access points like South Avenue in public hands.

It's all about the water.

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.

Paean To Local Pols

Two years ago I posted some thoughts about how grateful we should be to to citizens who answer the call to public service and stand for election. Just by filing for election, they serve the cause of Democracy.

Candidate filing for municipal office in North Carolina ended at noon yesterday. For the Town of Oriental, thirteen citizens filed to compete for five seats on the Town Board of Commissioners. Two filed to run for mayor.

We should celebrate them all.

That being said, those of us who vote need to remember we are not selecting a homecoming queen. The six candidates we elect will have real legal authority and real responsibilities. The decisions they make can affect what kind of Town we live in for the foreseeable future - months, years, decades or in some cases forever.

Selecting the Town's governing body is not a trivial matter. We each have our own criteria for candidates. Here are some of mine:

1. Commitment to the residents and to the future of the Town;

2. Attention to details;

3. Planning ability;

4. Sound, mature judgment;

5. Management and oversight ability;

6. Willingness to review key officials, including attorney;

7. Pursues and recognizes excellence;

8. Listens to citizens and exchanges information with them. Openly.

Some of our incumbents are deficient by these criteria. If I criticize any of them, remember: It isn't personal - it's business.

I started this blog while I still served on the Town Board. I did not want to play my cards close to my vest. I was happy for voters to know where I stood. I was equally happy for other members of the Board to know. If I was working on a proposal, I wanted the public to read it. Not that my drafts were "take it or leave it" ideas, but I wanted to exchange views. Waving arms and shouting at meetings isn't conducive to sharing. And ad hoc actions during meetings often turn out badly. I put one of my drafts on the Town web site once and caught a lot of flack for it. That's when I started the blog. I encourage every Town Board member to follow suit. I dare them to follow suit.

Why I Didn't File

I have been asked several times today why I didn't file to run for either commissioner or mayor of Oriental.

Short answer: my suits against the Town. Although there is no legal bar to my running for office and serving in office, had I been elected, it would be awkward every time the Town met with its attorneys to discuss the case. As a practical matter, it just wouldn't work, no matter how much I want to see regime change.

On the positive side, now that I no longer serve on the Pamlico County Board of Elections, I am free to talk about any of the candidates. I am free to disclose information to the public without being accused of putting an official thumb on the electoral scales.

Somewhat the same applies to Oriental Town politics. When I was elected to the Town Board in 2007, I knew that I would have to trim my sails to some extent in order to build enough support for actions I thought were needed. Every time a measure was voted on, I had to balance my personal opinion against the knowledge that at the next meeting, I may seek the vote of someone opposed to me on this one.

This isn't necessarily the same as what has derisively been called "log rolling." It is just the common-sense practice of picking your battles. If your object of seeking office is political posturing, it doesn't matter. If your object is to do things - to take action on behalf of the community at large, you need to exercise a bit of restraint.

I still want to accomplish things for the Town, but I am neither mayor nor a member of the Town Board. Nor do I seek those offices.

I admit I was more than a bit annoyed on March 4, when the Town's attorney, Clark Wright, explained to the judge that he should dismiss my complaint because I am "politically disgruntled" and running for mayor. I had never met Clark Wright in my life, had never disclosed any political ambitions with him or discussed anything other than legal procedures associated with the case. Nor will I ever in the future.

I may, however, now feel more free to disclose to the public the vast amount of misinformation they have been fed about the "land swap." I was more than happy for this to play out in the courts. But the Town has made it personal instead of a dispute about law.

I deplore that.

Filing Deadline For Municipal Elections

The deadline is noon on July 19th at the Board of Elections office at Bayboro (for Pamlico County).

So far, for the Town of Oriental, ten candidates have filed for the five seats (all at large) on the Town Board of Commissioners. Two incumbents (Warren Johnson and Barbara Venturi) have not yet filed for commissioner and no candidates have filed for mayor.

There may be yet more surprises in store tomorrow.

In the rest of the county, filing vacancies are:

Alliance: Three commissioner slots;

Arapahoe: Mayor and one commissioner slot;

Bayboro: Full slate;

Mesic: Full slate;

Minesott Beach: one commissioner slot;

Oriental: Mayor;

Stonewall: Full slate;

Vandemere: One commissioner.

Note: There is no upper limit on number of candidates who can file. If there are not enough candidates to fill all of the elected seats in a Town, the County Board of Elections has authority to extend the filing deadline one week, but no longer. If there remain an insufficient number of candidates, vacancies are filled by write-in votes.

First Candidate Files For Oriental Town Commissioner

I just learned that one Oriental resident has filed to run for Town Commissioner: Tony Tharp. Six and a half more days in the filing period.

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.

Pamlico County Municipal Elections

Municipal elections in North Carolina occur in November of every odd-numbered year. In case you missed it, 2013 is an odd number.

So you don't have to worry about the election for four more months, right?

Not exactly. As Town Dock reminds us this morning, if you want to run for municipal office, you need to file your candidacy during the filing period beginning noon Friday, July 5, 2013 and ending at noon July 19.

Even if you don't want to run for office but would like to see some new office holders, talk to others about running. Encourage them.

It matters.

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.

Oriental Town Budget

Last Monday, the Town Board held a public hearing on the budget for 2013-2014. Not many members of the public attended the 5:30 meeting, and there were few public comments. It took only a few minutes for the Town Board to approve the budget ordinance for the coming year.

Earlier this Spring, as reported in Town Dock, the Board considered a proposal to raise taxes to cover expenses resulting from my suit against the Town. Town Dock explained: "There will not be an increase in property taxes, even though, this spring, Commissioners had bounced that idea around for a week or two. Town Manager Bob Maxbauer claimed a tax hike was necessary to pay the town’s attorneys to fight lawsuits over the South Avenue and Avenue A rights of way. (Resident Dave Cox has sued the Town, saying towns can’t exchange or sell rights of way, as Oriental did in the Chris Fulcher land swap.

"Maxbauer wanted the Board to raise taxes 3 cents for every $100 valuation which would have brought in $63,000 – even though the Town’s attorney has estimated the cost of the lawsuit and appeal could run between $20,000 and $50,000. Commissioner Sherrill Styron said at one budget meeting that he wanted at least a penny tax to “make David Cox look bad” but in the end, the Board declined, in this election year, to raise the property tax at all."

I assume that Sherrill Styron's remark about raising taxes to make me look bad was offered in jest.

Oriental Town Board Meeting June 4, 2013

Interesting meeting at Town Hall tonight. Much talk about the water board. If there is such a thing.

I have written about what it needs to do. Just search for "water board." Check it out.