Friday, April 24, 2015
Oriental Town Board Official Minutes Of July 3, 2012 Meeting
For those nitpickers who pay attention to the Oriental Town Board, it may prove enlightening to compare the verbatim record of the Board's discussion (July 3, 2012) of closing of Avenue A and South Avenue with the approved minutes. I find little or no similarity. Here are the official minutes (below). Here is the transcript of the actual recorded discussions.
Town Board Meeting-July 3, 2012 1 of 3
Town of Oriental Town Board Meeting July 3, 2012
A regular scheduled meeting of the Town of Oriental Town Board was held at Oriental First Baptist Church, July 3, 2012, beginning at 7:00pm.
Present: Mayor Sage; Commissioners Bessette, Johnson, Summers, Styron, and Venturi; Town Manager Maxbauer; and Bylon Whitsett.
Absent: None Mayor Sage determined that a quorum was present. He opened the meeting and led the Pledge of Allegiance.
MOTION: Commissioner Summers made a motion to approve the agenda as presented. Commissioner Styron seconded. Motion passed. 5-0
MOTION: Commissioner Summers, with regards to the consent agenda, made a motion to approve the minutes from June 4, 2012. Commissioner Venturi seconded. Motion passed. 5-0 The minutes from June 5, 2012 were pulled from the consent agenda for review.
MOTION: Commissioner Venturi made a motion to approve the June 5, 2012 Budget Workshop minutes and the June 5, 2012 Town Board Meeting minutes. Commissioner Summers seconded. Motion passed. 5-0 The minutes from June 11, 2012 were corrected to read in paragraph 5 that Commissioner Venturi made the motion and not Commissioner Bessette.
MOTION: Commissioner Summers made a motion to approve the June 11, 2012 minutes as corrected. Commissioner Bessette seconded. Motion passed. 5-0 The Council discussed the modifications to the Contract Agreement regarding South Avenue/Avenue A. It was noted that all modifications applied only to the attachments.
MOTION: Commissioner Summers made a motion to accept the amendment to the agreement and to authorize and direct the Mayor and Town Clerk to sign it.. Commissioner Venturi seconded. Motion passed. 5-0
MOTION: Commissioner Summers made a motion to open the public hearing. Commissioner Styron seconded. Motion passed. 5-0 The following people spoke at the public hearing for the proposed street closures: Town Board Meeting-July 3, 2012 2 of 3 1. David Cox 2. Barbara Stockton 3. Jim Privette 4. John Zeren 5. Bob Miller 6. Bill Marlowe 7. Bob Pittman 8. Clare Pittman 9. Fay Midgette Bond. 10. David White 11. Marshall Tyler 12. Ken Brandon 13. Ken Midyette 14. Dawn Hines 15. Dee Sage 16. Pat Herlands 17. Irma Bond-Maxbauer 18. Grace Evans 19. Ben Cox 20. Art Tierney 21. Jennifer Roe
MOTION: Commissioner Johnson made a motion to close the public hearing. Commissioner Bessette seconded. Motion passed. 5-0 Mayor Sage reviewed various options for the street right of way closure and acceptance of property. There was some question as to whether or not the transaction would be considered an exchange.
MOTION: Commissioner Summers made a motion to find that none would be deprived of reasonable access to their property and that it is not contrary to the public interest to close Avenue A. Commissioner Styron seconded. Motion passed. 4-ayes (Summers, Venturi, Bessette, Styron) 1-nay (Johnson) Town Manager Maxbauer stated that the town needs to make sure that we retain a public utility easement on Avenue A.
MOTION: Commissioner Summers made a motion to reserve all public utility easements on Avenue A. Commissioner Venturi seconded. Motion passed. 5-0 The town attorney pointed out that the state statute requires ten days notice of an exchange being contemplated by the town board and that a statement of value be included in the notice. Regarding South Avenue, there was some discussion regarding the values in connection with an exchange and whether an independent professional appraisal be made.
MOTION: Commissioner Venturi made a motion to pursue hiring an independent professional appraiser to report back at the next council meeting. Commissioner Johnson seconded. Motion passed. 3-ayes (Venturi, Johnson, Bessette) 2-nays (Summers, Styron) There was some discussion regarding the annexation of property owned by Jerome Buckman. The Town of Oriental Planning Board presented a recommendation to pursue the annexation and zone it as R1. Town Board Meeting-July 3, 2012 3 of 3
MOTION: Commissioner Johnson made a motion to set the public hearing date to hear concerns regarding the annexation for August 7, 2012. Commissioner Styron seconded. Motion passed. 5-0
MOTION: Commissioner Summers made a motion to direct Town Manager Bob Maxbauer to sign the RESOLUTION OF INTENT TO ANNEX PROPERTY OWNED BY JEROME L. AND ELIZABETH M. BUCKMAN, WHICH IS NON-CONTIGUOUS TO THE EXISTING MUNICIPAL BOUNDARIES OF THE TOWN OF ORIENTAL and the RESOLUTION DIRECTING THE CLERK TO INVESTIGATE A PETITION RECEIVED UNDER G.S.160A- 58.1. Commissioner Venturi seconded. Motion passed. 5-0 During the public comment period, Ben Craven spoke about a fence being removed by the Town. The Town Manager reiterated to Mr. Craven the fence was on Town right of way and removal was an action decision of the Board. The porch encroachment issue on the Baskerville property on Midgette Street was commented on by Al Herlands. The matter of reappointments to the Parks & Recreation Committee were discussed.
MOTION: Commissioner Venturi made a motion to reappoint Sue Magnuson and Jim Edwards. Commissioner Summers seconded. Motion passed. 5-0 There being no further business, Commissioner Bessette made a motion to adjourn. Commissioner Johnson seconded. Motion passed. 5-0. Meeting was adjourned.
______________________________ William R. Sage, Mayor
________________________________ Robert J. Maxbauer, Town Manager
Topic Tags:
town government
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.”
Topic Tags:
public policy,
town government
Tuesday, April 14, 2015
April Can Be The Cruelest Month
The poet T.S. Eliot described April as "the cruelest month:"
"April is the cruellest month, breeding
"April is the cruellest month, breeding
Lilacs out of the dead land, mixing
Memory and desire, stirring
Dull roots with spring rain."
Today is the 150th anniversary of the death of fifty-six year old President Abraham Lincoln at the hands of the assassin John Wilkes Booth.
154 Years ago on April 12th, Confederate forces commanded by General P.G.T. Beauregard, fired at the United States Fort Sumter, guarding Charleston Harbor, setting off the Civil War.
Seventy years ago, April 28, 1945, Italian partisans captured and executed their erstwhile fascist dictator, Benito Mussolini.
Two days after the death of Mussolini, Adolf Hitler, the fifty-six year old Nazi dictator of Germany, committed suicide in his Berlin Bunker.
Seventy years ago, while at his vacation place at Warm Springs, Georgia, President Franklin Delano Roosevelt suddenly died of a massive stroke.
Forty-Seven years ago, April 4, 1968, Martin Luther King Jr. was assassinated.
Forty-Seven years ago, April 4, 1968, Martin Luther King Jr. was assassinated.
Of all U.S. Presidents, the two who most clearly left the country better than they found it were Abraham Lincoln and Franklin Delano Roosevelt.
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.
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.
Topic Tags:
town government
Saturday, April 4, 2015
Dr. Strangelove, Andreas Lubitz and General Jack D. Ripper
We learned soon after the Germanwings crash that it appeared to have been intentional.
The movie Dr. Strangelove immediately came to mind.
In the movie, US Air Force general Jack D. Ripper, undergoing an apparent mental health crisis, launched a first strike attack on the Soviet Union with disastrous consequences.
The movie was a black comedy, but was viewed by some experts as "a documentary," in that it depicted very realistically a scenario of what could happen if one demented individual were to take over the procedural machinery of launching a nuclear attack.
In the movie, General Ripper made use of a "safety" procedure to allow a retaliatory strike even if the central command authority had been destroyed.
That's exactly what Andreas Lubitz did, making use of the safety device designed to keep hijackers out of the cockpit.
In the real world of nuclear weapons control, there were two control mechanisms in place to prevent unauthorized release of nuclear weapons: (a) the Personnel Reliability Program (PRP) and (b) the two-man rule.
The PRP identified every person with a role in the handling and release of nuclear weapons. Both personnel and medical records were flagged so that administrative and medical personnel were aware of the PRP members. Medical personnel were expected to take immediate action to bring any such person going through a mental health crisis to attention of the command. No worries about privacy. Too much at stake.
It appears that Lufthansa and Germanwings had no such program. Plainly, passenger safety must override any concern for privacy of pilots and other flight deck personnel.
It also appears that Lufthansa had no rules prohibiting a single person in the cockpit in a position to crash the aircraft. This needs to be changed immediately.
The movie Dr. Strangelove immediately came to mind.
In the movie, US Air Force general Jack D. Ripper, undergoing an apparent mental health crisis, launched a first strike attack on the Soviet Union with disastrous consequences.
The movie was a black comedy, but was viewed by some experts as "a documentary," in that it depicted very realistically a scenario of what could happen if one demented individual were to take over the procedural machinery of launching a nuclear attack.
In the movie, General Ripper made use of a "safety" procedure to allow a retaliatory strike even if the central command authority had been destroyed.
That's exactly what Andreas Lubitz did, making use of the safety device designed to keep hijackers out of the cockpit.
In the real world of nuclear weapons control, there were two control mechanisms in place to prevent unauthorized release of nuclear weapons: (a) the Personnel Reliability Program (PRP) and (b) the two-man rule.
The PRP identified every person with a role in the handling and release of nuclear weapons. Both personnel and medical records were flagged so that administrative and medical personnel were aware of the PRP members. Medical personnel were expected to take immediate action to bring any such person going through a mental health crisis to attention of the command. No worries about privacy. Too much at stake.
It appears that Lufthansa and Germanwings had no such program. Plainly, passenger safety must override any concern for privacy of pilots and other flight deck personnel.
It also appears that Lufthansa had no rules prohibiting a single person in the cockpit in a position to crash the aircraft. This needs to be changed immediately.
Topic Tags:
government,
management
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:
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"
Topic Tags:
town government,
water access
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