South Avenue: Heart Of The Matter

Last night I received an e-mail from Mayor Bill Sage responding to earlier e-mails from me. What I learned from his e-mail is that he and the commissioners seem bound and determined to be able to sell the parcel the Municipal Corporation will receive from Chris Fulcher in exchange for the public rights of way the town holds in trust for the public.

The mayor's mantra: "Don't tie our hands."

My mantra: "Don't violate your trust."

Here is the heart of my letter in response to the mayor:

"Bill:

"Thank you for your reply. I am pleased the Town is in contact with David Lawrence, and I look forward to reading the written exchange with him. I am interested in his response to your questions and any citations he provided. I would also appreciate copies of any correspondence with other professors contacted at the School of Government, and with the Legal Services Department of the North Carolina Department of Justice....

"Please bear in mind I am neither opposing nor defending the Wisdom of the transaction. I am questioning the Rightness of the contract.

"Each Town Board must make decisions concerning the Public streets based solely on the long-term traffic use interests of the Public.  In this case, the long-term interest that matters most to me is public access to public trust waters. You and the Board clearly intend to close the South Avenue Right of Way which you hold in trust for the public and to replace it with a private asset not held in trust, but free to be sold by the municipal corporation at any time. I conclude from your e-mail that this is not just an unintentional result, but has been central to your deliberations. That violates the responsibility of the trustee. That is wrong.

David Cox"

Here is the heart of Mayor Sage's e-mail to me:

"David,

 

"Thank you for your letter and materials concerning the South Avenue transaction.  I am sorry that you feel compelled to oppose a transaction that I believe will benefit the town and its citizens and visitors immensely.  You are correct that process is important and the town attorney has consulted at great length with several of the professors (and retired Professor David Lawrence) at the UNC School of Government.  All agree that the end result under the contract is legally achievable, but they disagree on the best procedure to follow to get there.....

"You now seem to be taking the position that this board has a duty to “tie the hands” of all future boards, no matter the circumstances.  Will a town board 50 years hence be thanking us for “tying their hands”  if the circumstances then facing them (which we cannot possibly foresee) make it imperative that the property be closed as public access to Raccoon Creek.  Should it then revert to the Fulcher heirs because we didn’t trust future boards to be as sensitive to the public good as we are?....

"We cannot judge from this vantage point the circumstances they may face in making those decisions in the future.  I know there is often a strong urge to “carve things in stone,” but I truly believe that most of the time the urge should be resisted for the good of all.

 

"I have long been impressed by your thoroughness and seriousness of thought.  I simply and respectfully disagree on this matter.  Thanks again for your input.

 

"Bill Sage

  

  My original e-mail:

"From: David Cox
To: bob maxbauer ; Bill Sage ; Warren Johnson ; cechele@yahoo.com; barbara venturi ; larsum@aol.com
Cc: letters@towndock.net; Maureen Donald < editor@pamliconews.com >; Charlie Hall < chall@freedomenc.com >
Sent: Sat, June 30, 2012 11:27:55 AM
Subject: contract between town of oriental and chris fulcher

Some of you know I have been uneasy with certain aspects of the contract between the town of oriental and Chris Fulcher. I have been especially uneasy over what appears to be a sale of town rights of way, contrary to the law of streets. I am also concerned that acquisition of waterfront property under the contract provides no protection to the public interest comparable to the status of a right of way.

"I intend to speak on the subject at Tuesday's public hearing.

"In the meantime I wish to share my thoughts and some relevant information with you in advance of the meeting. I will deliver a hard copy to Town Hall Monday morning.

"Many years ago when Ben Hollowell was town attorney and the issue of South Avenue arose, he consulted with David Lawrence of the school of government and received Professor Lawrence's views in writing. Those views remain a matter of record at Town Hall. Likewise, Mr. Hollowell contacted the attorney general concerning some legal aspects of a right of way leading to the water. The attorney general responded with an advisory opinion, which is also on record at Town Hall.

"I strongly recommend the town board table consideration of the contract and intended street closures pending written consultation both with the School of Government and with the North Carolina Attorney General.

David Cox"

 

South Avenue: Don't Sell Our Streets

If you want to understand the legal issues surrounding the proposed closing of South Avenue, here is a thoughtful though detailed discussion of the issues.

South Avenue: New Stuff

Today at 3:15 the Town of Oriental published a set of significant amendments to the contract with Chris Fulcher. The public hearing is tomorrow night at 7:00. Not good.

South Avenue: What Do I Really Think?

I have offered suggestions from time to time both on my blog and in private. My goal was to be helpful. I see little evidence that my suggestions have had any influence. So I spent some time this evening reviewing my past posts.

As early as last January 28, I addressed the puzzle of the announcement that the town was "exploring the possibilities of sale or exchange of property in the vicinity of the west end terminus of South Avenue and Avenue A..."

I pointed out that the town owns no property in that vicinity. And that the town can't sell public rights of way. That hasn't changed.

Since January 28th, I have encountered on the internet many legal references reinforcing the principle 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 (a Florida case).

See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, 1044 (Ill. 1993)(“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”). 

The same principle is spelled out by Eugene McQuillin in 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, in violation of fundamental principles of the law 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 cestui que trust (the public), liberally construed for its benefit, strictly construed to its detriment." McQuillen.

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 the temptation for the governing body to exchange rights of way held in the public trust for short term fiscal benefit.

To barter our town's most irreplaceable  long-term asset, namely public access to the public trust waters of our harbor, for waterfront real estate held in fee simple, will inevitably tempt future town boards to sell the property to meet short term fiscal needs.

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. In response to the concern I have expressed about the current transaction, that there should be some restrictions, 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.

Future 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 structure an acceptance of Mr. Fulcher's donation of property so that it was not a sale or barter and so that the public's interests were protected by conditions of the gift. There may still be a way.

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

George Bernard Shaw, Oriental and South Avenue

George Bernard Shaw, the Irish playwright and author, was seated next to an elegant lady at a dinner party. Engaging the lady in conversation, he asked her: "would you sleep with me for a million pounds?" A little taken aback, the lady thought for a moment and replied: "I might do."  Shaw continued the conversation, asking: "would you sleep with me for five pounds?" Huffing in indignation, the lady replied: "certainly not! What do you think I am?" The playwright responded: "madame, we have already established what you are - now we are haggling over the price."

The story came to mind as I reflected on the proposed exchange of two dedicated and accepted rights of way, including South Avenue, for a waterfront parcel of real estate 55 feet in width. Would I find the exchange more acceptable if the parcel were, say, 78 feet wide, which is the width of the riparian area of Raccoon Creek subtended by our present right of way. Or even 60 feet, which is the width on land of the existing right of way.

We should not haggle over the price, because there is a fundamental principal involved here. The Town of Oriental holds its streets in trust for the benefit of the public. The town is not the proprietor of the rights of way. It is well established that the town has no power to sell or barter its streets. While the town may vacate, close or abandon a street by formal action after a public hearing governed by statute, it nevertheless cannot vacate a street for the benefit of a purely private interest.

I have no problem with Mr. Fulcher's offer. Mr. Fulcher is not an elected official and is under no special obligation to defend or protect the public interest. From his point of view, the proposed contract appears logical.

The town's elected officials, on the other hand, do have an obligation to protect the interest of the public. Public rights of way are in a different category from any normal lots that the town may own, and which the Town Board is empowered by statute to buy, sell, lease, or deal with like any other person with a proprietary interest.

Rights of way are quite different.

Another Lovely Weekend

We have suffered through another lovely weekend here in Oriental, NC at the water's edge. It's a tough life, but someone has to do it.

That's why we have to be particularly vigilant to protect the streets which provide public access to public trust waters and remind town government that it has no power to sell or barter the streets it holds in trust for the benefit of the public.

South Avenue Petition

There is a petition circulating around town opposing the contract negotiated between the Town Board and Mr. Chris Fulcher concerning the disposition of South Avenue.

I have neither opposed nor supported the process of negotiations. Whenever someone makes a proposal such as this, I think it should be considered carefully, in full appreciation of the facts and in a businesslike manner.

I have been reluctant to intrude on the process, but I have raised concerns from time to time. Nothing in the contract now on the table has alleviated those concerns.

I will, over the next few days, reiterate my concerns and illustrate them with historical documents, surveys and legal references.

My main problems are:

1.  The proposed exchange of two dedicated and accepted rights of way for title in fee simple to a parcel of real estate violates the legal prohibition against sale or barter of a public right of way;

2.  The public obligation of the Town Board in this case should be clear: to protect and preserve the public interest in access to public trust waters at the Raccoon Creek harbor which has hitherto been provided by the dedication to the public and acceptance by the town of the South Avenue right of way - any replacement must provide equivalent public access;

3.  Ownership by the town as proprietor of a parcel of real estate provides a lower level of protection of the citizenry against future imprudent actions by the governing body than that provided by a dedicated and accepted right of way (there may be other ways of depriving future governing bodies of the temptation to sell a property - the example of Lou Mac Park comes to mind);

4.  The proposed parcel isn't wide enough to provide the public with equivalent access to public waters as provided currently by South Avenue;

5.  It isn't clear from the information available that the Town has a complete and accurate idea of what can be built on the proposed parcel in light of the Neuse River Buffer and the CAMA area of environmental concern, nor is it clear that possible public uses of the existing South Avenue right of way to facilitate access to the water have been completely explored.

I think almost all of our citizens recognize the great economic potential for the benefit of all businesses in Oriental of expanded and improved harbor facilities.

But we need to make the effort and take the time to do it right, or at least as well as possible.

I'll have more later.

South Avenue Procedure

I understand from Town Dock.net that the Town of Oriental may hold a meeting Thursday, May 17 to hear public comments on the proposed contract with Chris Fulcher.

There are some chicken and egg issues involved here.

Before the town can complete the contract by closing streets, it must hold public hearings. Those hearings require public notice at least four weeks in advance. Here are the relevant provisions from North Carolina General Statutes:

§ 160A‑299.  Procedure for permanently closing streets and alleys.

(a)        When a city proposes to permanently close any street or public alley, the council shall first adopt a resolution declaring its intent to close the street or alley and calling a public hearing on the question.  The resolution shall be published once a week for four successive weeks prior to the hearing, a copy thereof shall be sent by registered or certified mail to all owners of property adjoining the street or alley as shown on the county tax records, and a notice of the closing and public hearing shall be prominently posted in at least two places along the street or alley.  If the street or alley is under the authority and control of the Department of Transportation, a copy of the resolution shall be mailed to the Department of Transportation. At the hearing, any person may be heard on the question of whether or not the closing would be detrimental to the public interest, or the property rights of any individual.  If it appears to the satisfaction of the council after the hearing that closing the street or alley is not contrary to the public interest, 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 reasonable means of ingress and egress to his property, the council may adopt an order closing the street or alley.  A certified copy of the order (or judgment of the court) shall be filed in the office of the register of deeds of the county in which the street, or any portion thereof, is located.

(b)        Any person aggrieved by the closing of any street or alley including the Department of Transportation if the street or alley is under its authority and control, may appeal the council's order to the General Court of Justice within 30 days after its adoption.  In appeals of streets closed under this section, all facts and issues shall be heard and decided by a judge sitting without a jury.  In addition to determining whether procedural requirements were complied with, the court shall determine whether, on the record as presented to the city council, the council's decision to close the street was in accordance with the statutory standards of subsection (a) of this section and any other applicable requirements of local law or ordinance.

     No cause of action or defense founded upon the invalidity of any proceedings taken in closing any street or alley may be asserted, nor shall the validity of the order be open to question in any court upon any ground whatever, except in an action or proceeding begun within 30 days after the order is adopted. The failure to send notice by registered or certified mail shall not invalidate any ordinance adopted prior to January 1, 1989.

(c)        Upon the closing of a street or alley in accordance with this section, subject to the provisions of subsection (f) of this section, all right, title, and interest in the right‑of‑way shall be conclusively presumed to be vested in those persons owning lots or parcels of land adjacent to the street or alley, and the title of such adjoining landowners, for the width of the abutting land owned by them, shall extend to the centerline of the street or alley.

The provisions of this subsection regarding division of right‑of‑way in street or alley closings may be altered as to a particular street or alley closing by the assent of all property owners taking title to a closed street or alley by the filing of a plat which shows the street or alley closing and the portion of the closed street or alley to be taken by each such owner.  The plat shall be signed by each property owner who, under this section, has an ownership right in the closed street or alley.

(d)       This section shall apply to any street or public alley within a city or its extraterritorial jurisdiction that has been irrevocably dedicated to the public, without regard to whether it has actually been opened.  This section also applies to unopened streets or public alleys that are shown on plats but that have not been accepted or maintained by the city, provided that this section shall not abrogate the rights of a dedicator, or those claiming under a dedicator, pursuant to G.S. 136‑96.

(e)        No street or alley under the control of the Department of Transportation may be closed unless the Department of Transportation consents thereto.

(f)        A city may reserve its right, title, and interest in any utility improvement or easement within a street closed pursuant to this section. Such reservation shall be stated in the order of closing.  Such reservation also extends to utility improvements or easements owned by private utilities which at the time of the street closing have a utility agreement or franchise with the city.

(g)        The city may retain utility easements, both public and private, in cases of streets withdrawn under G.S. 136‑96.  To retain such easements, the city council shall, after public hearing, approve a "declaration of retention of utility easements" specifically describing such easements.  Notice by certified or registered mail shall be provided to the party withdrawing the street from dedication under G.S. 136‑96 at least five days prior to the hearing.  The declaration must be passed prior to filing of any plat or map or declaration of withdrawal with the register of deeds.  Any property owner filing such plats, maps, or declarations shall include the city declaration with the declaration of withdrawal and shall show the utilities retained on any map or plat showing the withdrawal. (1971, c. 698, s. 1; 1973, c. 426, s. 47; c. 507, s. 5; 1977, c. 464, s. 34; 1981, c. 401; c. 402, ss. 1, 2; 1989, c. 254; 1993, c. 149, s. 1.)

South Avenue Contract

Here Is The Proposed South Avenue Contract


NORTH CAROLINA
PAMLICO COUNTY
AGREEMENT
THIS AGREEMENT (“Agreement”) is made and entered into this ____ day of May,
2012, by and between the TOWN OF ORIENTAL, a North Carolina municipal corporation,
party of the first part (“Town”), and G. CHRISTOPHER FULCHER and wife DEBORAH
WILLIS FULCHER, citizens and residents of Pamlico County, North Carolina (“Fulcher”) and
BAY CITY LODGE, INC., a North Carolina corporation (“Bay City”), parties of the second
part, all hereinafter collectively are referred to as the “Parties.”
W I T N E S S E T H:
THAT WHEREAS, the Town is considering closing the right of way of Avenue A and a
portion of the western terminus of the right of way of South Avenue at Raccoon Creek, said
rights of way being more specifically described in Exhibit A attached hereto and incorporated
herein by reference (the “Street R/W”), and identified on the survey attached hereto as Exhibit D
as “Exhibit A Street Closings”); and, because there exist plats or maps showing Neuse Front
Street, Avenue B and Main (or Maine) Street, the term “Street R/W” shall include any and all
streets or rights of way or remnants thereof in the area west of the portion of Wall Street that
extends from the southern margin of South Avenue to the Neuse River and westwardly, South of
South Avenue, to Raccoon Creek (all the property of Fulcher or entities controlled by Fulcher);
and
WHEREAS, if the Town closes the Street R/W, Fulcher and Bay City desire to convey to
the Town in fee simple certain real property located in the Town, said property being more
specifically described in Exhibit C attached hereto and incorporated herein by reference (the
“Property”) and to convey and dedicate a street right of way for public use to the Town a parcel
of land more specifically described in the attached Exhibit B; both of which are identified on the
survey attached hereto as Exhibit D as “Exhibit B Rededicated Portion South Avenue” and
“Exhibit C To be Conveyed to Town of Oriental” respectively; and
WHEREAS, the Parties hereto desire to reduce their respective obligations regarding the
Street R/W and the Property to writing in the event the Town closes the Street R/W.
Page 1 of 8
NOW, THEREFORE, IT IS MUTUALLY AGREED by and among the Parties as
follows:
1.
Definitions
1.1.
Certain terms having specific definitions are used in this Agreement, and these
terms and definitions, unless the context clearly indicates to the contrary, are as set forth in this
Section 1. The defined terms appearing in this Section are set forth in the Agreement in the
exact capitalized form as they appear between the quotation marks. When the same term is used
in this Agreement with the meaning as assigned herein, it shall appear in the identical capitalized
form. Otherwise, the meaning shall be as used in the context of the sentence in which it appears
and not necessarily that as defined herein.
1.1.1. “Agreement” – means this Agreement among the Town and Fulcher and
Bay City.
1.1.2. “Bay City” – means Bay City Lodge, Inc., a North Carolina corporation
with its principal, office and place of business in Oriental, Pamlico County, North Carolina.
1.1.3
“Deed(s)” – means one or more general warranty deeds conveying the
Property from Fulcher and Bay City to the Town in fee simple (Exhibit C parcel) or as public
street right of way (Exhibit B parcel).
1.1.4. “Fulcher” - means G. Christopher Fulcher and wife Deborah Willis
Fulcher, citizens and residents of Pamlico County, North Carolina.
1.1.5.
“Property” – means the real property owned by Fulcher and a portion of
the real property owned by Bay City located in the Town of Oriental, Pamlico County, North
Carolina, more specifically described on Exhibit C attached hereto and incorporated herein by
reference.
1.1.6. “Street Dedication” - means the real property identified on the attached
Exhibit B and being a portion of the real property conveyed to Fulcher and/or Bay City as a
result of the Town closing the Street R/W that Fulcher and/or Bay City shall dedicate to the
Town for use as a public street in the event the Street R/W is closed by the Town.
1.1.7. “Street R/W” – means the real property identified on the attached Exhibit
A, together with any streets or rights of way or remnants thereof in the area west of the portion of
Wall Street that extends from the southern margin of South Avenue to the Neuse River and
westwardly, South of South Avenue, to Raccoon Creek (all of the property of Fulcher or entities
Page 2 of 8
controlled by Fulcher) of the Town, whether or not shown on Exhibit D, and excluding any and
all utility easements that may exist, or that may be retained by the Town, within the area
identified on the attached Exhibit A.
1.1.8
“Town” - means the Town of Oriental, a municipal corporation duly
established and existing pursuant to the laws of the State of North Carolina.
2.
Town Obligations
2.1.
The Town shall consider closing the Street R/W in compliance with North
Carolina law no later than July 31, 2012.
2.2.
The Town shall cause a survey of the Street R/W (not necessarily showing all
remnants or platted streets), the Street Dedication and the Property to be prepared.
2.3.
If the Board of Commissioners determines that it is not in the best interest of the
Town to close the Street R/W, none of the Parties shall have any further obligations to the others
under this Agreement.
2.4.
If the Board of Commissioners closes the Street R/W, the Town shall accept the
Deed(s) from Fulcher and Bay City for the Property, and cause the same to be recorded.
2.5.
If the Board of Commissioners closes the Street R/W, the Town shall also accept
the dedication of the Street Dedication and cause the same to be recorded.
2.6.
If the Board of Commissioners closes the Street R/W, the Town shall also relocate
the two existing structures identified on Exhibit D onto the Property at the Town’s sole cost and
expense no later than ninety (90) days after the recordation of the Deed(s) to the Property.
2.7.
If the Board of Commissioners closes the Street R/W, the Town shall also execute
an agreement with Fulcher and Bay City, and any related waivers, to establish the use of and
access to the riparian corridors as illustrated on Exhibit D.
2.8.
The Town shall have no obligation to pay for, fund, or finance the purchase of the
Property, or any of Fulcher’s or Bay City’s obligations hereunder.
2.9.
The Town shall be responsible for the costs and expenses associated with its
obligations under this Agreement.
2.10.
It is specifically understood and agreed between the Parties that every obligation
assumed herein by the Town is subject to the limitation “to the extent that it may legally do so.”
Page 3 of 8
3.
Fulcher and Bay City Obligations
3.1.
Fulcher and Bay City shall prepare and execute the Deed(s) to convey the
Property to the Town, and deliver the same to the Town Manager who shall hold the Deed(s) in
trust pending the Board of Commissioners’ decision to close the Street R/W. If the Board of
Commissioners closes the Street R/W, the Town Manager shall cause the Deed(s) to be recorded.
If the Board of Commissioners determines that it is not in the best interest of the Town to close
the Street R/W, the Town Manager shall return the Deed(s) to Fulcher and Bay City within ten
(10) days of the Board’s decision.
3.2.
Fulcher and/or Bay City shall also prepare and execute a street dedication to
dedicate the Street Dedication to the Town for use as a public street, and deliver the same to the
Town Manager who shall hold the same in trust pending the Board of Commissioners’ decision
to close the Street R/W. If the Board of Commissioners closes the Street R/W, the Town
Manager shall cause the Street Dedication to be recorded. If the Board of Commissioners
determines that it is not in the best interest of the Town to close the Street R/W, the Town
Manager shall return the Street Dedication to Fulcher and/or Bay City within ten (10) days of the
Board’s decision.
3.3.
If the Town Manager records the Deed(s) to the Property, Fulcher shall cause the
removal the dolphin at the channel end terminus of the partially completed dock or pier located
on the Property no later than thirty (30) days after recordation of the Deed(s). Fulcher may keep
the piles from the dolphin, and shall in any event remove them from the Property unless the
Parties otherwise agree in writing.
3.4.
If the Town Manager records the Deed(s) to the Property, Fulcher shall install
appropriate pilings to extend the partially completed dock or pier located on the Property to the
maximum permitted length while maintaining the existing width of the said dock or pier no later
than forty-five (45) days after recordation of the Deed(s).
3.5.
If the Town Manager records the Deed(s) to the Property, Fulcher and Bay City
shall transfer all existing permits associated with the Property to the Town to the greatest extent
possible no later than ten (10) days after such recordation of the Deed(s), or as soon thereafter as
practicable.
3.6.
If the Town Manager records the Deed(s) to the Property, Fulcher and/or Bay City
shall execute any and all documents necessary and appropriate to transfer the Bay River
Page 4 of 8
Metropolitan Sewerage District sewer tap located adjacent to the Property to the Town no later
than thirty (30) days after recordation of the Deed(s), so that the Town may locate the sewer tap
to the Property.
3.6.
If the Town Manager records the Deed(s) to the Property, Fulcher and Bay City
shall also execute an agreement with the Town, and any related waivers, to establish the use of
and access to the riparian corridors as illustrated on Exhibit D.
3.7.
Within three (3) years of recording the Deed(s), and only in the event the Town
adopts an ordinance allowing property owners to waive side setbacks for Town parks while
Fulcher and/or Bay City (or any entity or entities whose majority interest[s] are owned or
controlled by them or either of them) directly or indirectly owns the real property to the
immediate south of the Property, Fulcher and Bay City agree to waive any side setbacks along
the southern line of the Property to the greatest extent possible.
3.8.
Fulcher and Bay City shall be responsible for the costs and expenses associated
with their respective obligations under this Agreement.
4. Miscellaneous
4.1. If any of the provisions of this Agreement shall be held by a court of competent
jurisdiction to be unconstitutional or unenforceable, the decision of such court shall not affect or
impair any of the remaining provisions of this Agreement, and the parties shall, to the extent they
deem to be appropriate, take such actions as are necessary to correct any such unconstitutional or
unenforceable provision. It is hereby declared to be the intent of the parties to this Agreement
that this Agreement would have been approved and executed had such an unconstitutional or
unenforceable provision been excluded therefrom.
4.2.
This Agreement shall be enforceable by each party hereto by all remedies
available at law or in equity, including but not limited to specific performance. Failure or delay
to exercise any right, remedy or privilege hereunder shall not operate as a waiver of such right,
remedy or privilege nor prevent subsequent enforcement thereof.
4.3.
This Agreement shall be executed by the Parties hereto in triplicate originals, each
of which, when executed, shall constitute one and the same Agreement and one of which shall be
retained by each party.
4.4.
This Agreement shall be governed in accordance with the laws of the State of
North Carolina.
Page 5 of 8
4.5.
Each party agrees that from and after the date of execution hereof, each will, upon
the request of the other, execute and deliver such other documents and instruments and take such
other actions as may be reasonably required to carry out the purpose and intent of this
Agreement.
4.6.
This Agreement may not be modified or amended except by subsequent written
agreement authorized and executed by each party.
4.7.
This Agreement is solely for the benefit of the identified parties to the Agreement
and is not intended to give any rights, claims, or benefits to third parties or to the public at large.
4.8.
No party hereto may assign this Agreement without the express written consent of
the others, which consent shall not be unreasonably withheld.
IN WITNESS WHEREOF, the Town of Oriental has caused this Agreement to be
signed and executed in its behalf by its Mayor, and duly attested by its Town Clerk or Deputy
Clerk; and Bay City Lodge, Inc. has caused this Agreement to be signed and executed by its
president or vice president, after due authorization by its Board of Directors; and G. Christopher
Fulcher and wife Deborah Willis Fulcher have signed and executed this Agreement, all in
triplicate, on the day and year first above written.
TOWN OF ORIENTAL
By:
William R. Sage, Mayor
ATTEST:
______________Oriental Town Clerk
BAY CITY LODGE, INC.
By: ________________________________
G. Christopher Fulcher, President
Page 6 of 8
G. Christopher Fulcher
____________________________________
Deborah Willis Fulcher
STATE OF NORTH CAROLINA—COUNTY OF PAMLICO
I, _____________________________________________________,the undersigned Notary
Public of the County and State aforesaid, certify that Robert J. Maxbauer, personally known
to me or identified by satisfactory evidence, personally came before me this day and
acknowledged that he is the Town Clerk for the Town of Oriental a North Carolina municipal
corporation, and that William R. Sage is Mayor of the Town of Oriental, and, by authority
duly given and as the act of such entity duly approved and authorized by the Oriental Board
of Commissioners, they both voluntarily signed the foregoing instrument in its name on its
behalf as its act and deed.
Witness my hand and Notarial stamp or seal, this the _____ day of May 2012
My Commission Expires:
Notary Public
Page 7 of 8
STATE OF NORTH CAROLINA—COUNTY OF PAMLICO
I, _____________________________________________________,the undersigned Notary
Public of the County and State aforesaid, certify that G. Christopher Fulcher, personally
known to me or identified by satisfactory evidence, personally came before me this day and
acknowledged that he is the President of Bay City Lodge, Inc., a North Carolina corporation,
and that by authority duly given and as the act of such entity, he voluntarily signed the
foregoing instrument in its name on its behalf as its act and deed.
Witness my hand and Notarial stamp or seal, this the _____ day of May 2012
My Commission Expires:
Notary Public
STATE OF NORTH CAROLINA—COUNTY OF PAMLICO
I, the undersigned Notary Public of the County and State aforesaid, hereby certify that G.
Christopher Fulcher and wife Deborah Willis Fulcher, personally known to me or identified
by satisfactory evidence,, personally came before me this day and acknowledged, their due
and voluntary execution of the foregoing instrument for the purposes therein stated.
Witness my hand and Notarial stamp or seal, this the _____ day of May 2012
My Commission Expires:
Notary Public
Page 8 of 8

More South Avenue Considerations

This will probably be my last post on this subject for awhile, unless something really alarming happens. 

I recommend the town board be very clear in their guidance to the town attorney.

If the central issue is, as I believe, whether the proposal by Mr. Chris Fulcher offers equivalent or improved public access to public trust waters in the town's harbor, we need to compare relevant facts. And our attorney needs to have command of all of the facts as he negotiates details.

Some issues:

Legal:

1. South Avenue was dedicated to public use of the citizens of Oriental by the principal landowner, Mr. Robert P. Midyette, in 1900 – providing public access to the water;
2. Avenue A was dedicated by Mr. Benjamin Wallace O'Neill in December, 1917 by the sale of lot 1 of the Oriental Bulkhead Improvement Company – Avenue A never led to the water;
3. The town may not sell a dedicated and accepted right of way either for money or any other valuable consideration. An exchange of ROW for title to property looks like a sale. I have said before and still believe, it would be better if Mr. Fulcher dedicates the property to the town for purposes of public access to the water than for the town to receive it in fee simple as a proprietor. It would be more clearly legal and provide better protection to the public.

Dimensions of South Avenue:

1. The South Avenue Right of Way is 60 feet wide;
2. Because of the angle at which South Avenue intersects the Raccoon Creek, the waterfront is approximately 90 feet long;
3. Because of the direction of the riparian boundaries, the width of the water to which the town owns rights is 85 feet, more or less, in a direction parallel to Mr. Fulcher's existing piers;
4. Mandatory (15 foot) CAMA buffers at the edges of the riparian area reduce the width of riparian area available for constructing piers or docks to 55 feet;
5. The parcel Mr. Fulcher proposes to donate to the town is 55 feet wide at the water's edge – he proposes both parties waive mandatory CAMA buffer: even so, with a mandatory CAMA buffer at the Toucan Grill end, that leaves only 40 buildable feet, even with the waiver.

What Can Be Built:

1. It is often asserted that we can build NOTHING on a right of way, “not even a gazebo!”
2. Not necessarily - we build stuff in rights of way all the time;
3. The rule is that we can build no permanent structure, even in unopened sections, that would prevent eventual use for ROW purposes;
4. In Town of Oriental ROWs, we plant trees, construct water mains and Sewer mains, utility poles and other encumbrances;
5. Yesterday a truck delivered a rest room facility and placed it in the ROW at Lou-Mac;
6. Other communities build shelters for bus riders, including public school students in their ROW (some shelters might even resemble gazebos);
7. Each year during Croaker Fest, large tents supported by pipe frames are installed on South Avenue near Lou-Mac Park, even involving some degree of damage to pavement;
8. During some large public events in the past, such as bicycle events, etc. organizers have placed trailers on the right of way for participants, including shower and rest room facilities.
9. In short, obstacles to providing public facilities for visitors and event participants in our ROW are not insurmountable. It might require a bit of imagination. [I am indebted to Kathy McIlheny, who gave me the trailer idea]
10. The proposed parcel is unbuildable for 50' from the water's edge Neuse River Buffer), the next 25' is in a CAMA area of environmental concern, and the last roughly 30 feet will probably be used for parking and other requirements to comply with our GMO, as well as ramps to meet ADA requirements for access to any building constructed on the property.

Advantages of The Proposed Parcel:

1. The site has been dredged and bulkheaded and a pier is under construction;
2. Sewer and water connections already exist;
   3.  Fewer building restrictions than a right of way.

Disadvantages of The Proposed Parcel:

1. Narrowness of the parcel and riparian area constrains visiting boats;
2. Some say the pier is unsuitable – too industrial for recreational boats;
3. Some say the projected pier is in the wrong place.

Conclusions:

The decision should be based on what is best for the town.

Avenue A only provides public access to Mr. Fulcher's property.

It is not correct to say that rights of way "are of no value." In coastal North Carolina, nothing is more valuable to the public than public access to the water.

South Avenue - This Isn't Personal; It's Business

Five years ago, when I first realized things were going badly awry with the town's lawsuit over South Avenue, I determined to pursue the cause as vigorously as possible. What was the cause? It was public access to public trust waters. It was also, more generally, pursuit of the Town Board's obligation to protect and defend public assets.

I was not motivated by any animosity toward Mr. Henry. I don't know Mr. Henry. Neither in the present case concerning the Town's response to Mr. Fulcher's proposal for what amounts to an exchange of routes of access to the harbor, am I motivated by either hostility or warm feelings toward Mr. Fulcher. Any such feelings are neither here nor there. A few years ago, I set forth my views about the suit here.

The bottom line now, as it was for more than a decade, is: The Board of Commissioners has a duty to protect the town’s assets. South Avenue has been a public right of way for at least ninety-five years and arguably for a hundred and twelve. It extends all the way to Raccoon Creek. The Board would be remiss if it didn’t continue to defend the public’s right of access to public waters, which has been provided by South Avenue.

We know that if we lose control over public access to the harbor in the vicinity of South Avenue and Avenue A we will never get it back. Future generations will never be able to use that access to public waters unless it is defended. 

We are now faced with a proposal from Mr. Fulcher which, if accepted by the town, may consolidate his holdings in a way that will enhance the value to him and to his "successors and assigns." 

Any benefit to Mr. Fulcher should not be the focus of our deliberations. Our focus should be on whether the proposal provides the public with equivalent or improved access to public trust waters in our harbor.  

We also have the issue of whether the proposed deal, as negotiated, is legal.

More later.

South Avenue Update

Last night at the regular Oriental Board of Commissioners meeting, attendees were shown a detailed survey of the area surrounding the intersection of South Avenue and Avenue A. The survey was done in support of the contract being negotiated between the town and Mr. Chris Fulcher. The contract itself has apparently not been completed, but some provisions can be deduced from details on the survey. Here is the survey:

I see several potential problems with the proposal as reflected in the survey.

Oriental's Parks and Rec board met this morning at 8:00 to review the plans. There is a brief account here at Town Dock. The main issues were summarized as follows:

"Like some of the public — such as Oriental resident and long-time sailor Art Tierney — who were at the meeting, a majority of the Parks and Rec Board questioned whether the town was getting adequate land and water rights and maneuvering room for visiting boats in the exchange.

"One issue: how savvy were town officials when they negotiated the deal. When asked this morning why the town hadn’t done a real estate appraisal on the land that Chris Fulcher would gain in the land swap, Town Commissioner Larry Summers dismissed the idea and reiterated his position that the right of way land was worth nothing to the town."

I will address these issues over the next day or so.

Oriental Comprehensive Plan

Next Tuesday night, May 1, Oriental's Long Range Planning Committee will unveil its draft of a comprehensive plan.

I haven't completely digested the plan, but there are features of it that I like. Here is a link to the Town Board agenda. Click on the second item to see the 24-page draft of the comprehensive plan.

A second item on the agenda that may make attendance worthwhile is that the town attorney, Scott Davis, will provide an update on South Avenue.

More On The South Avenue Deal

Today's Parks and Rec meeting was good, because attendees asked a number of probing and worthwhile questions. Those interested in taking another look might want to review some earlier observations I made here.

I think my previous post covers most of the issues. I'd be happy to answer any questions anyone may have. Contact me at: cox.d.r@att.net.

South Avenue Special Meeting

This morning a special meeting of Oriental's Parks and Recreation Board met at the intersection of Avenue A and South Avenue. According to my sources, some assertions were made that may not be entirely factual, and questions raised to which the answers are available.

For those curious about background details, I recommend a search in this blog site for "South Avenue." I have made a lot of posts, in considerable detail, over the past three years. One post, that shows the survey of the intersection by Dennis Fornes, is worth taking a look at: http://mile181.blogspot.com/2010/06/south-avenue-street-end.html

The pink wedge shows where the pavement curved around to the left from South Avenue. There has been discussion since winning the case, that the town would have to tear up the pavement and return the wedge to the owner of the corner lot.

It ain't necessarily so. So far as I have been able to tell, that curve has existed since at least 1936 and probably from as far back as the 1920's. The public has been using that curve in the road as a right of way all that time. That is more than sufficient time to establish the curve as town right of way by prescription.

The town can certainly abandon that portion of right of way, following a public hearing, just as it can abandon rights of way established by other methods. But there must be a hearing.

More on this set of issues later.

Town Of Oriental Announcement

Just in - or at least I just noticed: 

Special Parks & Recreation Board Meeting - April 24, 2012 8:00 am to begin on the corner of South Ave. and Ave. A. 

 

Parks & Recreation Board will begin their meeting at 8 am near the corner of South Ave and Ave A to discuss design concepts for a new town pier/dock.  Meeting will continue at 8:30 am in the Baptist Church on Broad Street.
For more information please contact town hall at 249-0555.

Thoughts On South Avenue

I've been checking into the limits imposed by Neuse River Buffer, CAMA and our own Growth Management Ordinance. It looks like, if the proposed exchange goes through, there may be enough room on the lot for a 20'x30' building and about four parking places.

There is much talk about what could be built there, but it would help to see some sketches.

In the meantime, a number of residents have sent letters to Towndock.net, published here.

We have not yet learned how the Board plans to deal with possible legal obstacles.

South Avenue Deal

This evening, the Oriental Town Board of Commissioners by a unanimous vote of the four commissioners in attendance approved "in principal" to accept a counter offer by Mr. Chris Fulcher concerning the exchange of property. Details to be negotiated in a contract to be reviewed by the board. Public hearing to be held on the issue of vacating public rights of way currently owned by the town. The proposed map:

This is somewhat better than the earlier proposal here, but there still may be devils in the details. Lawyers for the two sides will negotiate.

Some commissioners, responding to skeptical comments by attendees, emphasized that the rights of way the town is giving up are "worth nothing." I think the truth is more complicated. To be sure, the town cannot sell the rights of way, because the town is not the owner of the underlying fee. But, if abandoned, there is clearly a tangible value to the land freed for sale, transfer or use by the fee owner. To truly understand the value to the recipient, it might be of interest to have a valuation of the real estate value of the land being abandoned by the town. Clearly it is not "nothing."

Earlier this week, the mayor spent a long time talking about the "intangible" benefits of the negotiation. I think the benefits to the public of public access to the water are a concrete benefit of living in the Town of Oriental, not just an "intangible" benefit. It is why people move here.

There were options open to the town had the Board wanted to use the existing South Avenue right of way to build a welcome center, public rest rooms, a museum, or any other purpose associated with public access to the water. It could, for example, have offered to purchase the underlying fee from the fee owner, either through negotiation or by exercising eminent domain. It might have been difficult and costly, but it would have been possible.

As it is, there will be building restrictions due to the fact that about half of the area to be donated to the town is within the 50 foot Neuse River Buffer and subject to building restrictions. It would be interesting to know what can be built there within those constraints.

A major advantage to the public of a dedicated and accepted right of way is that it cannot be sold, only abandoned. This provides better protection of the public interest than if the same property were owned outright. The town's governing body has the legal right to purchase and sell property at will. I would be happier if the property to be donated in this case were dedicated to the public for the purpose of public access to the water, including building of appropriate facilities to support public access. An example of a restricted donation to the town is Lou-Mac Park. We should look at this model.

Appeasement in Oriental?

There were some curious aspects to last night's meeting of the Oriental Town Board.

1. Although many members of the public attended, apparently hoping to learn more about South Avenue property negotiations, only two members of the public commented during the comment period. Neither appeared to be enthusiastic supporters of the proposal as it apparently exists. Grace Evans reminded the Board that back in the 1980's when she served on the Board, the Board adopted a policy not to transfer any more street ends to private ownership.

2. Perhaps one of the reasons more members of the public did not speak is that the proposal received from Mr. Fulcher has never been introduced at a business meeting of the Town Board nor was it tabled at Tuesday's meeting. Neither has it been posted on the Town's official web site. Following the public comment period, the mayor gave an exposition of his views of the issue, but there was no explanation of the procedure to be followed in considering the proposal, and the facts provided were sketchy at best.

3. Comments by the mayor and a few by members of the board seemed to constitute a discussion, but No Motion Had Been Made. There should be no discussion without a motion. The board did vote on a motion to go into closed session to deliberate on negotiating strategy. But we still have no official introduction of the matter to be negotiated.

4. Most curious, the mayor spent about fifteen minutes (I didn't time it) explaining that an important benefit of the proposal is the intangible benefit of improved relations with the Fulchers and the Henrys. He implied that a history of strained relations between the Town and Mr. Fulcher and the Town and Mr. Henry was caused by the Town Board's insensitivity to the concerns of both families.

I think it is a mistake to personalize policy disagreements. It is the duty of the Town Board, acting as our governing body, to protect and defend the long term interests of the residents, acting in accordance with state law. To that end, the Town has adopted a zoning ordinance (GMO) and has accepted responsibility for public rights of way established under North Carolina law. These laws apply to everyone in the town. Equally.

I wasn't here at the beginning of policy conflict between the Town of Oriental and Mr. Fulcher or the conflict over right-of-way law with Mr. Henry. But I have read the files. The conflicts weren't personal - they were business.

Both Mr. Fulcher and Mr. Henry have been successful businessmen. There was a time when businessmen were seen as "hard-nosed," meaning rational in action, making decisions on the basis of cold, hard fact. And on the basis of both personal and business interests. It would be good for the Town Board to assume this is still true.

I hope the Town Board will pursue negotiations concerning South Avenue in the same spirit - that is, in a rational effort to pursue the best long-term interests of the citizens of Oriental, protecting public access and use of the water.

What's The All-Fired Rush?

Just received the following:

"From: <townhall@townoforiental.com>
Date: Wed, Feb 8, 2012 at 3:49 PM
Subject: Special Meeting Called
To: cechele@yahoo.com, larsum@aol.com, pstyron@embarqmail.com, barbventuri@gmail.com, kwjohnson@centurylink.net, bill@sagelaw.net
Cc: Pamlico News <editor@pamliconews.com>, Jeff <jeff@compassnews360.com>, Melinda <info@towndock.net>, Charlie Hall <chall@freedomenc.com>

I hereby call a special meeting of the Oriental Town Board of Commissioners for 4:00 PM on Friday, February 10, 2012, at First Baptist Church fellowship hall for the purpose of considering terms of property acquisition transaction at Raccoon Creek.

Bill Sage, Mayor"

This sounds like something may be happening, but it isn't clear what. If I find out more, I'll share more thoughts.