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

Sunday, April 19, 2015

Transcript Of Public Hearing By Oriental Board Of Commissioners July 3, 2012

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


[…Public Hearing Closed] 1:11:21

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

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

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

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


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

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

Note repeated misrepresentation of the statute.

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

Summers: 1:15:36 I’d like to make a motion…

??: “That’s enough to… receive it.”

[papers shuffling] [Summers submitted a written motion. No copy was provided to the public in violation of NCGS 318.13(c).]

Sage: [Venturi recognized]

Venturi: 1:16:06 Indistinct… “model for openness”… indistinct…]

“If it is appropriate to follow two lines of action to ensure that all obstacle courses have been dealt with, I move that we go forward on the full and fair consideration including notice to the public, that would include appraisals as soon as appraisals or evaluations of the properties and considerations…”

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

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

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

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

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

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

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

“There’s camp that likes an exchange agreement, there’s a camp that likes a pure exchange, there’s a camp that likes a street closing and a donation separated.

And we don’t have any case-law that tells us what the magic recipe is. *

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

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

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

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

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

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

Jim Privette [from audience:] “yes”

Summers: “Experience in municipal law?”

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

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

You can’t sell an easement, you can’t eat an easement, you can only close an easement, that’s the only thing that you can do.

Note: Summers got that right!

“What we’re looking at doing is closing streets, and then being offered in exchange, if we close the streets, you will receive X as a donation to the, for the good of the Town.

“I think that’s a wonderful thing, and I think it’s a wonderful piece of property for it.

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

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

Sherril Styron (Styron): “If it’s gonna take one more month to do it right, I don’t have a problem with that, but Avenue A: I can see no reason for that not to be closed, whether we are doing exchanging or do nothing else, Chris Fulcher owns the property on every side of it.

“It goes nowhere, except dead-ends in his property… [words to the effect that opponents envy Chris Fulcher]… no matter what we do, I think Avenue A should be closed, and I’m prepared to do it tonight, unless the attorney feels like we need to wait until next week.

“I’ve not heard nothing tonight that changes my mind on what we need to do. I would love to proceed as quick as we can and close this out.

“But if Scott feels like we need to wait one more month I’ll go along with it.”

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

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

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

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

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

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

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.

Motion to close Avenue A would be in order...*

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

Summers: “I’ll do that one.

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

Scott Davis: “Let’s edit that motion in the continuation of the discussion regarding the South Avenue terminus - is that part of your motion?

“You move to close Avenue A, it’d be nice in that motion to also continue the deliberation in consideration -

Summers: “Let me restate the motion, if I may, Mr. Mayor.

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

Sage: “Motion by Mr. Summers for this Board to close Avenue A and other possible rights of way as described in the notice of intention in the area bounded on the West by Raccoon and Smith Creek, on the North by the South margin of South Avenue, on the East by the Western margin of Wall Street, and on the South by the Neuse River.

“Seconded by Commissioner Styron.”

“… and to continue consideration of the closure of the South Avenue terminus for the August 2012 regularly scheduled Town Board meeting.

Scott Davis: “Another recommendation might be to further amend that motion to provide that you have found that closing the street is not land-locking property owners, and is not contrary to the public interest.*

*Another intervention by Town Attorney to include conclusions on matters not discussed or deliberated on by Town Board.

Sage: “Will you make an amendment?”

Summers: 1:29:29 “Yes, I will amend that… it is to the satisfaction of the Board after the hearing that closing the above-referenced streets are not contrary to the public interests, and that no individual owning property in the vicinity of the street or alley, or in the subdivision in which it is located, would thereby be deprived of a reasonable means of ingress and egress to their property.”

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

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

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

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

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

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

Wednesday, April 8, 2015

Oriental Town Board Meeting Brings Up Staggered Terms Option

Not much happened at last night's Town Board meeting.

The only thing of note was that the biannual proposal to amend the Town charter for staggered four year terms was brought up for discussion.

The idea has come up every other year since Bill Sage became mayor and since Barbara Venturi lost the tie breaker for her seat in 2007. Nothing ever came of the discussion.

Charlie Overcash, David White and Larry Summers all spoke against the idea this evening, pointing out that our potential candidate pool tends to be of an age that is reluctant to make a four year commitment. Especially those reluctant to invest in green bananas.

Barbara Venturi and Bill Sage raised the specter of a possible wholesale replacement of the entire board. The new board wouldn't have any continuity and would be unable to provide leadership for the Town's advisory boards and committees.

In my view, that's a feature, not a bug. Voters should have the option of replacing the incumbents wholesale.

Bill Sage reminded the Board that "this almost happened" in 2005.

I attended most of the meetings of the 2005 Board. That Board consisted of Warren Johnson, Al Herlands, Candy Bohmert, Nancy Inger and Barbara Venturi with Sherril Styron in his 18th year as mayor. It was easily one of the best boards of recent years. They had No trouble learning what to do.

That board was replaced by one consisting of Sherril Styron, David Cox, Candy Bohmert, Kathy Kellam and Nancy Inger.

So what's the problem?

Neither Bill Sage nor Barbara Venturi offered much in the way of a parade of horribles

Except that Venturi offered the Comprehensive Plan as an example of something so complicated we need continuity of leadership to insure its implementation.

Really?

Work on the Long Range Plan began in 2006. One of the inputs was an elaborate survey that Barbara designed. The draft Long Range Plan appeared just before the candidate filing deadline. The list of things to do looked a lot like previous lists in our file cabinets going back twenty years. Apparently continuity wasn't much of a problem.

After the election, the Long Range Planning Group continued its efforts. Anyone following the effort would have had a hard time telling what changed between drafts.

One constant theme of the drafts was to protect and enhance public access to public trust waters, particularly to protect public access at each of the street ends. This continued on into the effort that turned the Long Range Plan into a Comprehensive Plan.

The list of streets to be protected for the public specifically included the end of South Avenue, the subject of the Town's successful suit against Lacy Henry.

On May 5, 2012, the Town Board voted to adopt the Comprehensive Plan, including protection of public access to the harbor at South Avenue. The vote was unanimous. Barbara Venturi voted yes.

Later during the VERY SAME MEETING, someone introduced a motion to hold a public hearing to close both Avenue A and South Avenue.

Barbara Venturi voted for that as well.

I conclude that "continuity" may or may not be a problem from one term to another, but it is evidently a serious problem from one motion to another at the same meeting.

I doubt we could do anything to the Charter to fix that.

Did I mention that when Bill Sage brought the idea of staggered four year terms up in 2008 none of the Board members spoke for it and at least four spoke against it?

This is the kind of legislative proposal often mentioned as a "zombie" idea - it won't die, but just keeps coming back.

Tuesday, March 31, 2015

David Cox Letter To Oriental Town Commissioners

On January 26, I sent a letter to Oriental's Town Commissioners that, among other things, proposed options for protecting the public and private interests of Oriental property owners in the new Town Dock. I had made similar suggestions in 2012 before filing my suit. In 2012, the Mayor's answer was "we don't want to tie our hands." In January the answer was a flat rejection.

The purpose of rule of law instead of arbitrary authoritarianism is precisely to "tie the hands of government."

In January, the Town Board simply rejected my proposals.

Here is the letter:



"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 undefined 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 which establishes the procedure for appealing town street closures.

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 did act 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 proposal, here is an abridged version of the arguments I will make 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, however, the question I am currently appealing is only whether I have a right to seek a court determination of that question.

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 does allege 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 the subdividing 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 statutes.

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. 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, including former portions of South Avenue. Dedication and acceptance of public amenities would tie the Town’s hands. Three years ago, the mayor informed me he didn’t want the Town’s hands tied.

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 dedication has occurred, and the resolution appears without legal effect on the future of the property. The Town has argued (citing Watts v. Valdese) that regardless of any past use or how acquired, a Town has complete discretion to sell or exchange any real property it owns. I agree. But there are ways to preserve amenities for future generations, typically through dedication and acceptance. That should have been done at the time of the transfer.

If these matters were properly addressed in a way to preserve the amenities for the future, I might be willing to abandon further litigation. Such measures should include at least :
1. Proper dedication of the new property to the public and acceptance by the Town on the public’s behalf;
2. Dedication of the property as an easement appurtenant to all properties within the original borders of the Town;
3. Abandonment by the Town of all efforts to seek sanctions under rule 11.

This proposal will not only effectuate promises already made by the Board, but will ensure enforceable public and private rights to use the property for water access purposes for future generations.




David R. Cox

Cc: The Honorable Bill Sage, Mayor"



Sunday, March 29, 2015

Town Of Oriental v. Lacy Henry (Highlights)

Remember the previous South Avenue Case? The Town spent tens of thousands of dollars to win clear control over the terminus of South Avenue.


TOWN OF ORIENTAL, Plaintiff,
v.
Lacy HENRY and wife, Judy
B. Henry, Defendants.
No. COA08–896.
Court of Appeals of North Carolina.
July 7, 2009.
Background: Town filed suit against purported owners of portion of street that was
never paved or used for vehicular traffic,
seeking to clear title to property. Defendants filed motion to dismiss for failure to
state a claim upon which relief can be
granted. Town filed motion for summary
judgment. The Superior Court, Pamlico
County, Kenneth F. Crow, J., denied
town’s motion, treated defendants’ motion
as one for summary judgment, and granted summary judgment to defendants.
Town appealed.
Holdings: The Court of Appeals, Stephens, J., held that:
(1) unpaved portion of street that was never paved or used for vehicular traffic
remained dedicated to public use;
(2) withdrawal of dedication of portion of
street that was never paved or used for
vehicular traffic by its former owner
was ineffective; and
(3) purported owners were not permitted
to acquire possession of the property
by adverse possession.
Reversed and remanded.
1. Appeal and Error O893(1)
Standard of review for summary judgment is de novo.
2. Dedication O19(5), 29, 31
Generally, where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open; [There is more, but this is pertinent to Cox v. Town]


Appeal by Plaintiff from order entered 2
May 2008 by Judge Kenneth F. Crow in
Pamlico County Superior Court. Heard in
the Court of Appeals 29 January 2009.


Wheatly, Wheatly, Weeks & Lupton, P.A.,by Stevenson L. Weeks, Beaufort, and Davis,Hartman, Wright, PLLC, by Michael ScottDavis, New Bern, for Plaintiff.Lee, Hancock & Lasitter, PA, by Moses D.Lasitter, and McAfee Law, P.A., by Robert
J. McAfee, New Bern, for Defendants.

Friday, March 27, 2015

Cox Surrenders to Town Government's Taking

This is to let readers of my blog know that I have formally surrendered in the court case of Cox v. Town of Oriental in what I still view as a swindle.

I call it a swindle because when Town Government closed the terminus of South Avenue, they took my personal property right (and the right of other property owners in the Village) to an easement in that street and gave it to another citizen. Not because I say so, but because more than a hundred years of NC Supreme Court decisions say so. The Court of Appeals spelled it out in the second paragraph of their 2009 opinion in the case of Town of Oriental v. Henry: "Generally," the Court said, "where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open...." 

I didn't surrender because the Town had the right to close South Avenue - they didn't. I surrendered because I no longer have the material and emotional resources to continue the fight, even though the prospects for a win at the Court of Appeals were excellent. But I had to face the possibility that even after a win I might face additional years of litigation.

I'm sorry the elected officials of the Town spent so much money on the effort to keep the legal issues from being ruled on by the Court of Appeals. I'm sorry the Town Government has done nothing to protect future public access to and ownership rights of the new Town Dock, as I urged them repeatedly to do.

From 2002 to 2009 the Town Government spent tens of thousands of dollars to defend its control of South Avenue and to defend the rights of its citizens to use that public way to access public trust waters. That effort sought to bring legal issues before the Court of Appeals. Now the Commissioners claim to have spent more than 80 thousand to abandon the fruits of that victory for the Town's citizens and property owners. This time the Town Government's purpose in the court fight was to keep the issues away from the Court of Appeals.
I am grateful to the Court of Appeals for spelling out in its opinion on Avenue A what I needed to do to win on South Avenue. I am also grateful to the Court that it did not affirm a single one of the Town's claims to have lawful authority to do what they did.

That being said, I could easily foresee two or three more years of effort to oppose this taking, with an uncertain outcome. I have other things to do.

I have abandoned the court fight, but I will not abandon my concern for public access to public trust waters.

Thanks for your support.

David Cox

Friday, March 20, 2015

Town of Oriental Press Release

Readers of The Pamlico News will know about the lengthy screed published on the front page of Wednesday's edition. The lead in paragraph described the screed as the "settlement agreement" between the Town and me.

It is not.

The document, described as a "Press Release," was forwarded to local press by Town Hall, with the following message:

"From: Town Manager <Manager@townoforiental.com>
Date: Tue, Mar 17, 2015 at 12:42 PM
Subject: PRESS RELEASE
To: editor@thepamliconews.com, Jeff@compassnews360.com, Charlie Hall <charlie.hall@newbernsj.com>, Town Dock <info@towndock.net>


Good Afternoon,
Please see attached Press Release. Any further comment from the Town can be solicited from Mayor Bill Sage at 252-670-8227.

David Cox Comment: The Town's "Press Release" is quoted below. I have been told by a usually reliable source who wrote the document, but until the author has the fortitude to sign it, I prefer to call the author "anonymous" or "concealed."

PRESS RELEASE
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. The long and expensive ordeal began when Cox challenged the Town’s authority under state statutes to close the street rights-of-way at South Avenue’s western terminus at Raccoon Creek and all of Avenue A. Cox filed a lawsuit in August 2012 objecting to the Town’s closing of Avenue A, which was done by order of the Board of Commissioners after a public hearing in July 2012. After a hearing in Pamlico County Superior, Senior Resident Superior Court Judge Benjamin Alford, on April 6, 2013, dismissed all counts of the complaint filed by Cox . Cox had represented himself, pro se, in the court hearing. Cox then obtained an attorney who filed an appeal to the North Carolina Court of Appeals from Judge Alford’s order dismissing the case.
After the dismissal of the lawsuit, the Town entered an order to close the western end of South Avenue to the waters of Raccoon Creek. The order announced the intention of the Board to dedicate the property as a park providing public access to Raccoon Creek and public amenities to be constructed thereon. Picnic tables were purchased and placed on the property as part of the process of making it a first-class amenity for the Town citizens and visitors alike.
Notwithstanding that his case had been dismissed and an appeal filed, Cox (again acting pro se) filed a second lawsuit against the Town for the closing of a portion of South Avenue. This meant that the Town had to pay its attorneys not only for successfully obtaining dismissal of the first suit and to fully brief the issues to the Court of appeals, but now also to start the process again on the second lawsuit. The Town’s legal bills began mounting to tens of thousands of dollars. The Town filed motions similar to the earlier motions in the first case to dismiss the second and for sanctions against Cox for filing the second suit. Superior Court Judge John Nobles entered a stay of the second action pending the outcome of the appeal, on the grounds that the appeal would likely resolve the second case.
On the first of July 2014, the Court of Appeals filed its opinion and order affirming Judge Alford’s order dismissing the first lawsuit. The opinion found that Cox had no standing to bring the first suit. By this point, the Town had spent more than $60000 on the Cox lawsuits and the Town’s attorneys invited Cox to dismiss his second action in light of the Court of Appeals’ decision, to end the farce once and for all, warning Cox that sanctions would be pursued if he refused. Cox refused to take a dismissal and, therefore, the Town was obliged to file yet another exhaustive brief to the Superior Court and to renew its formal motions to dismiss. Judge Alford held a hearing on November 24, 2014 on the motions and subsequently issued his order dismissing all of the second lawsuit, another complete victory for the Town, but at considerable additional cost. Cox then did the unimaginable. He filed an appeal to the Court of Appeals of Judge Alford’s order dismissing the second case.
Judge Alford had indicated that the Town’s motion for sanctions was still ripe and that he would hear a motion if the Town pressed it. Further talks between the Town attorneys and Cox ensued and as deadlines at the Court of Appeals approached and passed, Cox finally agreed to dismiss the appeal and all matters and suits against the Town. The Town merely agreed not to pursue sanctions any further. The release and dismissal was signed and will be submitted to the Court this week. The total cost to the Town of Oriental of David Cox’s actions is likely to be in excess of $80000.
During this expensive and lengthy process, the Town proceeded with completing the partially built dock on the property obtained from Mr. Fulcher. We now enjoy a beautiful new eighty-foot public dock for visiting boaters to The Sailing Capital of North Carolina. In addition, the Town applied for and has been awarded grants for the construction of a public restroom facility on the property and for acquisition and placement on the property of a waste pumpout station for vessels visiting the new Town Dock Number Two. Plans are approved and construction is proceeding. The old historic boathouse on the property is to be fully renovated into a Visitors Center, adding yet another much needed amenity to the Town assets for visiting boaters and other tourists.
The Town Board of Commissioners and the Manager and her staff are about to enter the budget process for the next fiscal year. But for Mr. Cox and his lawsuits and appeals, there would be many more dollars available for Oriental to use in providing facilities and services to its citizens and visitors."

Diane H. Miller
Town Manager
Town of Oriental, NC
507 Church St PO Box 472
Oriental, NC 28571
Pursuant to NC General Statutes Chapter 132, Public Records, this electronic mail message and any attachments hereto, as well as electronic mail message(s) that may be sent in response to it may be considered a public record and as such are subject to request and review by anyone at any time."

David Cox Comment:

I urge any member of the public having questions about the document to follow the instructions and call Mayor Bill Sage.

Tuesday, February 3, 2015

Cox v Town Of Oriental

Quick update. Last week, I sent a letter to the Town Commissioners explaining my view of the law that applies and where things stand. I also outlined a possible resolution. I sent a more detailed letter to the Town's attorney. I expect they will go into closed session tonight to discuss it.

Wednesday, December 17, 2014

I'm Thinking It Over

From the March 24, 1948 broadcast of THE JACK BENNY PROGRAM.

--Hey, bud. Bud.
--Huh?
--Got a match?
--Match? Yes, I have one right here--
--Don't make a move, this is a stick-up.
--What?
--You heard me.
--Mister. Mister, put down that gun!
--Shaddup. Now, come on--your money or your life.
(Pause.)
(Laughter.)
--Look, bud! I said your money or your life!
--I'm thinking it over!
(Laughter.)

 Friends ask me what I am going to do about Judge Alford's dismissal of my complaint against the Town about the closing of South Avenue.

On top of that, there's the Town Attorney's threat to file a motion for sanctions and Judge Alford's e-mail declaring that he would be receptive. (The mugging).

Right now, I can only offer Jack Benny's reply.

More to follow.

Monday, September 8, 2014

Oriental New Town Dock - What Might Have Been

Three years ago, the Town of Oriental submitted a grant proposal for Federal Boating Infrastructure funds to build a pier for transient recreational boats at the end of South Avenue.

The plans show six boat slips and a width on the water of 80 feet. Plenty of room for visiting boats to go around other boats to get alongside either side of the dock.

Just take a look here, download the proposal, and compare the proposal to what we have.

Friday, August 8, 2014

How Can The Town Board Nullify A Vote Without Holding Another Public Meeting?

I hope today's report on Town Dock is erroneous:

"Oriental’s Town Board meets for a quick meeting on Tuesday August 12 at 5:30p to take another vote on who will be appointed to the newly formed Harbor Waterfronts Committee. The vote the Board took on August 5, has since been nullifed because the Commissioners did not have before them all the names of residents willing to serve. Town Hall says that was “due to an unfortunate administrative oversight…several candidates were left off of the ballot issued to the Commissioners for voting.” There will be 11 names on the ballot Tuesday. The 5 who were elected in the now nullified vote were: Art Tierney, Ed Bliss, Lisa Thompson, Bill Hines and Gerry Crowley. They remain on the ballot along with, Dave Brookman, Elizabeth Buckman, Bob Dillard, Jim Edwards, Steve Leech and Pat Stockwell."

"Has since been nullified" by whom?

Sunday, July 6, 2014

Cox v. Town of Oriental: Bad News

Nearly a week ago, I checked the NC Court of Appeals web site and read the bad news. The Court of Appeals upheld the decision of Pamlico County Superior Court to dismiss my case. The Court's reason: I lack standing.

It isn't bad news because I have lost. It is bad news because the public has lost control of a public asset. This is about the future of the Town of Oriental. And the rule of law.

The case isn't necessarily over. I have almost a month in which to petition the NC Supreme Court for a hearing.

I will consult with my attorney and others to help me decide.

Stay tuned.

Tuesday, June 17, 2014

Town of Oriental Budget Coming Fiscal Year

Tomorrow evening, June 18 at 7:00 pm, the Town holds a public hearing on the budget for the coming fiscal year. Citizens who are interested in the budget should attend the hearing. They should also read the Town Manager's budget report, to which Town Dock has posted a link here.

Diane Miller's budget report is a well-written, clear explanation of the budget process and considerations. Even if you don't attend the hearing, by all means read the report. You will be rewarded by the effort.

I, for one, am pleased with our new manager. She is addressing issues that the Town Board has wrestled with for at least seven years. I am pleased at the progress she and her predecessors have made in that time.

Wednesday, April 23, 2014

Cox v Town of Oriental

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 9, 2014

Cox v Town Of Oriental Update

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

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

Wednesday, April 2, 2014

Cox v Town Of Oriental

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

Town Of Oriental - Town Board Meeting April 1, 2014

Good Town Board meeting tonight. Everyone got to meet the new Town Manager - Diane Miller. My assessment: we are lucky to have her.

As for the Board, they did well. Tonight was the first quasi-judicial hearing by this board.

Just a suggestion - I think it is generally a bad idea for Town Board members to sit in on Planning Board meetings, especially meetings reviewing permit applications. Best to do that business at arm's length.

Thursday, March 20, 2014

Cox v Town Of Oriental Now On Line

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 18, 2014

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

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

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

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

Is it worth it?

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

In my view, those are pretty high stakes.

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

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

My action isn't all that drastic.

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

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

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