The record shows that as early as January, 2012, soon after the public became aware of the so-called "land swap" proposal that I questioned the Town's legal authority to do what they wanted to do. I expressed my concerns in writing and in face to face conversations with the Town manager and the mayor. I urged the mayor and the Board to ask the NC Attorney General for an advisory opinion. Or, alternatively, that the Town ask the School of Government for an opinion. The mayor refused.
In May through July of 2012, at public comment periods during Town Board meetings, a number of attorneys residing in Oriental spoke, all in opposition to the proposal. At the public hearing on closing Avenue A and South Avenue, Town Attorney Scott Davis admitted that no case law told the Town how to proceed.
For the past three years, I have been trying to obtain records of the closed sessions between the Town Board and the Town Attorney concerning my law suits. The official binder of closed session minutes has now disappeared. The Town has cobbled together some records that may or may not correspond to the missing ones.
What is NOT in those records is as interesting as what is.
One interesting record is for the closed session of March 3 of this year:
http://www.townoforiental.com/vertical/sites/%7B8227B748-6F08-4124-B0ED-02789B9A2F82%7D/uploads/030315_Minutes_with_addendum_and_notation.pdf
In case the Board was confused about my purpose, my letter of last January 26 should have cleared it up:
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 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 appeal provision of the statute.
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 acted 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 settlement
proposal, here is an abridged version of what I will argue 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, the question I am currently appealing is only
whether I have a right to ask the courts to determine whether the
closure complied with the statute.
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 alleges 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 such a 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
Constitutions.
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 as a
subdivision lot owner. 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.
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 such dedication has occurred.
If
the new property is properly dedicated to the public (and accepted on
behalf of the public by the Town), and as an easement appurtenant to
all of the properties within the original borders of the town, I
would consider it an adequate replacement of the South Avenue right
of way, and would be willing to forego further legal proceedings on
the matter.
I
will be forwarding a more detailed proposal for settlement to the
Town's attorneys. My proposal will allow the Town to continue its
current plans for the property, and effectuate promises already made
by the Board, while ensuring an enforceable right of future
generations to use the property as a public access point to public
trust waters.
David
R. Cox
Cc:
The Honorable Bill Sage, Mayor
****************************
Before that, I have a long history of concern about South Avenue.
Here is what I wrote about it in 2009.
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