Town Of Oriental Sale Of Property?

I've been puzzling over the mayor's special message of two weeks ago:

"The Town of Oriental is exploring the possibilities of sale or exchange of property in the vicinity of the west end terminus of South Avenue and Avenue A.  No action was taken by the Town Board of Commissioners at the special meeting held on Friday, January 13, 2012.  In the event the Town receives an offer, such offer will be a public record available for inspection.  Such offer would be taken up at a subsequent public meeting."

As of Friday, the mystery has been removed.

What had been puzzling is that the town owns no property in the vicinity of the west end terminus of South Avenue and Avenue A. The town only owns, on behalf of the public, the public rights of way in that vicinity.

Furthermore, a town can't sell such a public right of way, because some other party owns the underlying property rights. The only option available to the town if it no longer wishes to maintain custody of a dedicated and accepted right of way is to abandon it. If the town abandons a right of way, ownership reverts to the party that owns the underlying "dirt." Determining the party who owns the underlying "dirt" can be complicated in the older part of town.

We now know that Mr. Chris Fulcher wants to trade some of his existing property leading to Oriental Harbor for the terminus of South Avenue and for Avenue A. The proposal might or might not be a good deal for the town.

There are two questions for the board to examine:
1. Will the property to be "donated" to the town equal or exceed the value to the town and to the public of the existing right of way providing public access to the harbor?;
2. Can the proposed exchange be negotiated in a way that avoids at least one and probably two or more legal obstacles?

New Town Dock Project

It was a good turnout last night at the town board meeting. Standing room only. Almost every attendee spoke during the public comment period. All but one were in favor of the project and that one wasn't vehemently opposed. The Board voted unanimously to go forward.

A New Town Dock

Last Thursday's agenda meeting of Oriental's Board of Commissioners revealed that Tuesday's meeting will discuss building an additional Town Dock at the end of South Avenue.

This parcel, to which the town won the rights in a case decided by the North Carolina Court of Appeals in 2009, gives the public direct access to the harbor. One appropriate use of the parcel is to build a simple pier extending about 100 feet from shore, for use by transient vessels.

A recurring complaint in some circles is that Oriental isn't sufficiently friendly to business. Otherwise, some contend, we would have more businesses and they wouldn't keep failing.

I wonder how many businesses a population of 875 (latest census) can support. Even the "greater Oriental" population of 2,000 can't support many. We are at the end of the highway.

On the other hand, from 14,000 to 20,000 (estimates vary) boats cruising the East Coast via the ICW each year pass less than two miles away. That represents more than 40,000 potential customers. The best thing we can do for Oriental businesses is to attract more boats to stop here. That would be good for every business.

Last Thursday, one commissioner opposed additional free dockage, on the grounds it may compete with nearby commercial marinas.

This misses the point. Cruising sailors select where to stop based on the reputation a town has as a hospitable place. Availability of transient docks and free anchorage space is among the factors affecting this reputation. The goal is to improve Oriental's brand. The better the brand, the more boats stop. The more boats that stop, the more will come back. Some even stay.
As I contended almost two years ago, the question of what to do about South Avenue is about the future, not the past.

Those of you who support the new town dock project and the effort for Oriental to become even more welcoming and hospitable to cruising sailors, please come to the meeting of the Town Board at 7:00 pm Tuesday, May 3 at Town Hall. And bring other supporters.

The important competition is between Oriental and other towns along the waterway.

South Avenue - The Rest of the Fence

Learned this evening at the Town Board meeting that the rest of the fence across the end of South Avenue and Avenue A will come down tomorrow.

South Avenue Fence - Not Down Yet

For some reason, the town's hired contractor left fifty feet of Mr. Henry's fence standing. It intrudes about twenty feet into the 30-foot wide right of way for Avenue A. The fence encompasses approximately a thousand square feet that does not belong to Mr. Henry and constitutes a major obstruction to Avenue A.

Last year's decision by the NC Court of Appeals makes it crystal clear that Mr. Henry has no plausible claim to any portion of any street shown on the Oriental Bulkhead Improvement Company plat, including both Avenue A and South Avenue.

South Avenue: The Fence is Coming Down

After eight years of litigation, loss at summary judgment, victory on appeal sustained by the NC Supreme Court, and six months after Judge Crow signed the final order granting ownership to the Town of Oriental, the fence across the South Avenue right-of-way blocking public access to the water is coming down.

This morning, a contractor hired by the Town began cleaning out the debris left behind when Neuse Ways Company ceased operation of its marine railway. By tomorrow, it may be possible for the public to walk right down to the water, as they were able to do in past decades.

This is a time to celebrate.

South Avenue Update

Pamlico County Superior Court Judge Kenneth Crow signed the final judgment granting ownership of the end of South Avenue to the Town of Oriental last February 5th.

Six months have passed, and the fence is still up. I am told that last Wednesday Lacy Henry agreed for the Town to remove the fence he put up in the Town's Right of Way about eighteen years ago.

Care to place bets on how long it will take for the fence to come down?

South Avenue - Closed Minutes September 4, 2007

I promised to continue the saga of South Avenue as revealed in the closed minutes. On September 4, 2007 Attorney Davis reviewed "all the facts" regarding the South Avenue Litigation with the Town Board and handed out copies of the original case filed by Lacy Henry.

After laying out a theory of the case based on the original town map of 1900, Attorney Davis explained "the other side might argue, 'show me where those streets were condemned or acquired' and we cannot."

Actually, we could have easily done so. But Attorney Davis had never researched the necessary facts in the five years since the town filed its suit. No research. No discovery. No requests for production of documents. No requests for admissions. No interrogatories.

The truth is, Ben Hollowell, when he was town attorney in 1995 and 1996, had already laid the foundation for the case. He submitted queries to the NC Attorney General and to David Lawrence of the Institute of Government, the state's expert on right-of-way law. David Lawrence outlined the winning case.

The case was simple. A plat of 34 lots and associated streets was made by the Oriental Bulkhead Improvement Company and filed. The assets of the company were bought at auction by Mr. Benjamin Wallace O'Neal in 1917, before any lots were sold. Mr. O'Neal sold one of the lots in December, 1917 by reference to the plat and to the south edge of South Avenue. He sold at least thirty more lots from the plat in February, 1918. The town opened the section of South Avenue between Wall Street and Avenue A in early 1918. Under NC law, the sale of a single lot completed the dedication to the town and the opening of any portion of any street on the plat accepted the dedication, making it irrevocable.

Attorney Davis didn't do the research and didn't have either the necessary facts or the necessary legal theory. The known facts didn't completely support his own legal theory, but he barged ahead anyway. No wonder he tried to talk the town into settling.

The September 4 minutes are too long to attach here, and I would have to provide explanatory notes that would at least double the length. I'd be happy to share the minutes and explanations with anyone who asks.

More to come.

Closed Session Minutes - South Avenue I

A while back, I reported that I now have copies of closed session minutes relating to South Avenue.

Here is the first one:

"Town of Oriental - Board of Commissioners Meeting
August 7, 2007

The Oriental Town Board of Commissioners met on Tuesday August 7, 2007 at 6:00 pm at the Oriental Town Hall. Present were Mayor Styron and Commissioners Bohmert, Herlands, Inger and Venturi.

CLOSED SESSION: Attorney Davis informed the Board that Mr. Henry may offer the Town 30 feet in fee simple, down the middle of the right-of-way of South Avenue. The Board requested the offer in writing and in detail.

MOTION: Commissioner Bohmert made a motion to go out of closed session. Second by Commissioner Inger. Vote 4-0."

Comment: The Board was right to ask for a written, detailed offer. None was ever received, nor was it credible to expect one. The Town had in its possession a copy of Mr. Henry's CAMA permit for an eight-slip marina, using Mr. Henry's own lot and the full sixty-foot width of the Town's right-of-way. One can only wonder if Attorney Davis ever looked at it.

More later.

The Great Recession? Or Third Depression?

The great mystery of the great depression of the 1930's was: how could the economy achieve apparent stability at low levels of use of economic resources?

Classical economic theory held that, unfettered by government interference, the market would naturally establish equilibrium at full employment. Periods of reduced economic activity were held to be unstable, leading to a return of stability at full employment.

But from 1929 on, the world economy was stubbornly stable at very low levels of activity. John Maynard Keynes researched the problem with a sense of urgency, publishing his magnum opus, the General Theory of Employment, Interest and Money, in 1936. He demonstrated that in times of massive unemployment and economic stagnation, only government spending could get the economy moving again. Under such circumstances, budget deficits were not important. Keynes was unimpressed with arguments that "in the long run" things would get better. "In the long run," he responded, "we'll all be dead." Over the following quarter century, his theories were adopted by nations all over the world, with great success.

Why would countries abandon a set of insights that worked so well? That is the question economist and New York Times columnist Paul Krugman examines in today's newspaper. Although he doesn't come out and say so, he seems to fear that once again (as in the 1930's) the world economy is in the hands of fools.

If we hope to avoid a third depression and put people back to work, it is not yet time for Congress to worry about deficits.

South Avenue Missing, Stolen or Strayed

Town property has been stolen.

Crucial pieces of the Neuse Ways Marine Railway which were left behind when Neuse Ways' lease of the Town's street end expired, have disappeared. Under the terms of the lease, the parts were the Town's property.

How did this come about? I intend to find out.

Only the Town Board has authority to dispose of Town property. If the Board acted on this matter, I totally missed it.

The parts could have been used by one of the County's museums to reconstruct a historical device used in boat maintenance and repair.

South Avenue Street End

I thought readers might like to see the layout at the end of the Town's Right of Way on South Avenue, formerly leased by Lacy Henry and blocked off by his fence, even though the town has won its case. The pink wedge is the pavement on a lot owned by Mr. Henry, which allows access to Mr. Fulcher's property otherwise blocked by Mr. Henry's fence.

According to the lease, anything left behind when the lease expired in 1992 belongs to the Town.

As you can see, the fence intrudes more than halfway across the Town's Right of Way for Avenue A.

South Avenue Fence

I have been asked several times lately, "when is the fence coming down?"

I modestly point out that I have no inside knowledge anymore. But I have recently learned that the Town of Oriental has given Mr. Lacy Henry a deadline for him to remove the fence.

As some of you may recall, Judge Kenneth Crow signed the Judgment that "the Town of Oriental is the owner of the South Avenue Terminus" on February 5th, 2010. The Superior Court Judgment completed action on a decision by the North Carolina Court of Appeals issued July 7, 2009.

Most of the delay resulted from unsuccessful efforts by Mr. Henry to persuade the Court of Appeals and the North Carolina Supreme Court to review the unanimous decision of a Court of Appeals panel.

Now the Town needs to get moving. The street end leading down to the water needs to be cleaned up and made presentable.

More urgently, we need a plan on how best to use this public asset.

I have some ideas, which I will be sharing with my readers.

South Avenue

I just bicycled past the fence at the end of South Avenue. There had been a sign on the fence announcing the Corps of Engineers project to repair the town breakwater. That project is now completed and the sign is gone.

It's time for the town to clean up the street end and remove or cause to be removed the fence that blocks the end of South Avenue and a portion of the town's right of way on Avenue A.

The case is over. Let's take possession of what is ours.

South Avenue Court Case Judgment

At the March 2 meeting of the Oriental Town Board, Mayor Sage asked me if Judge Crow had signed the final judgment in the case of Town of Oriental vs Lacy Henry et al. I confirmed that he had. Here it is:

STATE OF NORTH CAROLINA, COUNTY OF PAMLICO, TOWN OF ORIENTAL, Plaintiff vs. LACY HENRY, and spouse, JUDY B. HENRY, and E. SHERRILL STYRON and spouse, PHYLLIS H. STYRON,* Defendants, IN THE GENERAL COURT OF JUSTICE, SUPERIOR COURT DIVISION, File No.: 03-CVS-44

JUDGMENT:

"The Court, pursuant to the Opinion issued by the North Carolina Court of Appeals on July 7, 2009 and Judgment certified to the Superior Court of Pamlico County on the 27th day of July, 2009, in case No. COA 08-896, finds that there is no issue as to any material fact and that the Town of Oriental is the owner of the South Avenue terminus, more particularly described as the property located in the Town of Oriental bounded on the North by the land of Garland Fulcher, bounded on the South by the land of Lacy Henry, formerly Neuse Ways and Marine, Inc., and bounded on the West by Raccoon Creek (Oriental Harbor). Said land being the extension of South Avenue beyond the area of vehicular traffic and extending to Raccoon Creek and shown on a map entitled "Survey, Oriental Bulkhead Property" which is recorded in Map Book 1, Page 19, Pamlico County Registry, and that the Town of Oriental is entitled to judgment as a matter of law.

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that summary judgment is granted in favor of the plaintiff, Town of Oriental, against the defendants, Lacy Henry and wife, Judy B. Henry and that the Town of Oriental is the owner of the afore described real property known as South Avenue terminus and the claims of the defendants to said property are hereby dismissed, and the costs be taxed against the defendants.
"This the 5th day of Feb, 2010.

"Signed
The Honorable Kenneth F. Crow
Superior Court Judge"

*Note: As I pointed out previously, the Styrons are no longer defendants in the case.

South Avenue and Commissioner Styron

I just saw today's edition of the Pamlico News and noticed on page 5 the statement that "Defendants named in the suit are Lacy B. Henry and spouse, Judy B. Henry and Sherrill Styron and spouse Phyllis H. Styron."

The Styrons are no longer defendants.

Sherrill Styron was named in the original suit because he and his wife then owned a small piece of land which included two hundredths of an acre within the South Avenue right of way. The late Garland Fulcher acquired the two hundredths of an acre by quitclaim deed from Ann Wadley Wing about 1995 and combined it with an adjacent tract fronting on the harbor. He transferred ownership to Sherrill Styron before the town filed its suit. Sherrill Styron sold the parcel afterwards to Chris Fulcher, disclosing in the deed that there may be encumbrances on the property.

Neither Sherrill Styron nor Chris Fulcher responded to the suit, and as a result the town won with respect to that parcel. That two hundredths of an acre is no longer at issue. Both Sherrill Styron and Chris Fulcher acted properly, and the town no longer has any dispute with either of them concerning South Avenue.

South Avenue: The Fence

The fence at the end of South Avenue has been there, as best I can tell from correspondence, since 1992. It is entirely within the boundaries of the town's rights of way for South Avenue and Avenue A.

The fence needs to come down as soon as possible after the Superior Court judge signs the final order carrying out the decision of the North Carolina Court of Appeals. Before removing the fence, there is a significant task that needs to be done - clean up the mess along the waterline and in the underbrush behind the fence. There may be residual machinery and other junk remaining from when the marine railway last operated. Under the terms of the last lease to Mr. Henry, anything remaining on the right of way at expiration of the lease belongs to the town.

Rather than wait until the town is able to obtain a clean-up grant, it seems to me a good idea to have a clean-up party. I would be happy to collect names of Oriental residents willing to volunteer to help in the clean-up. Drop a line to me, David Cox at cox.d.r@att.net. I'll collect the names and pass them on to town hall.

You can read more about this case at TownDock.Net

Petition Denied!

In the case of The Town of Oriental v Lacy M. Henry over South Avenue, the North Carolina Supreme Court today announced it has denied Mr. Henry's petition for a discretionary review of last year's unanimous decision by the Court of Appeals in the town's favor. That leaves only the signing of an order by the Superior Court judge to complete the town's suit against Mr. Henry.

No More Dithering on the Duck Pond

It looked for awhile like the town of Oriental might once again dither on the restoration of Raccoon Creek, affectionately known as the Duck Pond. Early Monday morning, though, Mayor Bill Sage is reported to have signed the Authorization Document to seek funds from the state for project planning.

This process has been dragging out for years. Neighbors have pleaded with the town to close Main Street at the Duck Pond, perhaps replacing it with a footbridge or bicycle bridge, high enough to paddle a small boat under. The street is flooded and impassible often enough that the neighbors want it closed.

Two years ago a Duck Pond Committee was formed. They worked with an engineering firm to develop a plan, which was presented to the public. When completed, the Duck Pond restoration would result in an attractive park-like setting in the heart of the old village, attracting residents and visitors alike.

To complete the project, the town needs grant money. The first grant submission ran into problems, and it was withdrawn. But it is important to keep the project alive. In particular, we need to remind the North Carolina Clean Water Trust Fund that we are serious about pursuing the project.

Last Thursday at the Oriental Town Board agenda meeting, Commissioner Bohmert briefed the board on a grant opportunity requiring the original proposal to be split into more manageable chunks. The first chunk would be a planning grant, which would require NO matching funds from the town. The engineering firm is preparing the grant application, and needed a signed authorization document no later than Monday, February 1.

The ensuing discussion was disappointing. Mayor Sage refused to sign the authorization on the grounds he does not understand the "functions and obligations" the town must "proceed with diligence to perform" if the grant is made.

From where I was sitting, the functions and obligations seemed pretty obvious. We would be requesting a grant to perform planning. The obligation pretty clearly is to spend the money and manage the effort to insure a plan is delivered.

The mayor has since relented and signed the document. It is on its way.

If this document had not been signed, in the normal course of events, it could be another year before a grant opportunity occurs. And the town would have no plan.

That is why it sometimes takes so long for the town to do things.


P.S. Main street was impassible this weekend.

North Carolina's ICW: Neglected Economic Engine

What would you think of an infrastructure project that reduces petroleum imports, reduces congestion on I-95 and 17 without expensive and disruptive construction, and brings sustainable jobs to thirteen counties in Eastern North Carolina? How could that be done? Improve and expand the North Carolina portion of the Atlantic Section of the Intracoastal Waterway as an integral part of the North Carolina and national transportation system.

Advantages:

• Water transport of cargo is the most fuel efficient and lowest cost method. A gallon of fuel moves a ton of cargo eight times as far on water as on land;
• Water transport is by far the least costly and safest of all transportation modes and has the lowest environmental impact;
• A single barge carries as much cargo as 58 trucks; typical tows are from four to fifteen barges – a single tug and fifteen barge tow replaces 870 trucks;
• USDOT projects truck traffic on I-95 will double by 2030 increasing an average of 10,000 trucks per day, equivalent to a dozen fifteen barge tows;
• Increased ICW traffic would offer the opportunity for steel barge and tug construction and maintenance, barge cleaning and storage operations and related economic development opportunities in Eastern North Carolina.

Problems:

• Decades of neglect of the ICW, lack of funding for maintenance dredging, postponed modernization projects, lack of official advocacy by the State of North Carolina;
• Failure to view the ICW as part of an integrated transportation system: the State agency that interfaces with US Corps of Engineers is Fish and Wildlife, not DOT;
• Failure to involve counties and regional councils of government (COGs): the only NC commission with ICW responsibility is the Morehead City Navigation and Pilotage Commission, with responsibility as far as Aurora, but whose membership is required to be from Carteret County (ICW transits 13 counties);
• Shortage of intermodal transshipment facilities at railheads and ocean ports;
• Failure to adapt highway asset management strategies to waterway infrastructure analysis

Recommendations:

• Create a North Carolina ICW Commission with membership from each of the 13 bordering counties, regional COGs and rural transportation planning organizations (RPOs) to develop a comprehensive, coordinated plan for water transport, integrated with land transportation planning and economic development planning;
• Investigate opportunities for intermodal transshipment facilities at Washington, New Bern, Morehead City, Jacksonville, Wilmington, Southport and other locations along the ICW with rail and truck facilities;
• Charge NCDOT with task of ICW transportation planning;
• Assign a cabinet level official to interface with US Army Corps of Engineers

For more information, consult the following:

Waterways Council, Inc., (WCI), the national public policy organization that advocates for a properly funded and well-maintained system of inland waterways and ports.
Bluewater Charts & Books Newsletter -Following the Intracoastal Folly: What is happening to keep the waterway running
NC State Ports Authority - 21stCentury Transportation Intermodal Committee - February 21, 2008 Report

North Carolina Coastal Federation
US Army Corps of Engineers: Inland Navigation - Value to the Nation
North Carolina Beach, Inlet & Waterway Association