Cox v. Town Of Oriental: The Real Story

A lot of nonsense has been promulgated by Oriental Town Government about why I filed suit against the Town over closing of Avenue A and South Avenue.

It was about taking away public rights, but it was very much about defending private property rights.

I call it a swindle. It can also be called theft. Constitutionally, it was a "taking." Takings can be lawful, if taken for a public purpose. But this was neither an exercise of eminent domain nor an exercise of the state's "police power." The only other circumstance in which a street closing is clearly authorized by case law is if all the property owners in a subdivision agree to it.

The Town's attorney Clark Wright knows this. Mayor Bill Sage knows this. But they wanted to do what they did, and they didn't even want to protect public access to the "donated property" by a public dedication, a deed restriction, or any other measure that would protect the public in the future.

It changed the face of the Town forever, and since I have now withdrawn my suit, it can't be undone by the courts, even if it is unlawful.

It isn't really complicated, but the Town Board and its attorneys spent (they say) $80,000 to protect the deal by keeping it from the Court of Appeals.

Here's my story: http://compassnews360.com/former-commissioner-explains-why-he-sued-oriental-town-board/

Cox v Oriental Release and Settlement Agreement

• Scott Davis
• 
  
• Mar 27

To

• Benjamin Alford

CC

• David Cox
• Clark Wright
• Lynn Holton

Good morning Judge Alford -

We wanted to make you aware that the Town of Oriental and Mr. David Cox have resolved this matter with Mr. Cox agreeing to withdraw his appeal of your Orders.  Pursuant to the terms of the agreement, Mr. Cox filed his Notice of Withdrawal of Appeal yesterday.  Under the agreement, the Town agreed that it would waive its rights to pursue any claims against Mr. Cox for sanctions and damages, and further agreed to advise you by email notice that the Town does not desire that the Court, on its own motion, consider or hear any further motions for sanctions against Mr. Cox arising out of 12-CVS-121 or 13-CVS-67.

With each party now having satisfied its obligations under the settlement agreement, this matter is officially settled.

Scott
_______________________________________________________________________________

Is It About The Water?

In Oriental, it's all about the water!

At least, that's what it says on the Town's web site.

From 1899 until 2012, I would have agreed. But in 2012, the Town government held a hearing for the purpose of closing Avenue A and South Avenue, the latter the principal public access to the water of the Town's harbor. So maybe it isn't about the water any more. At least, for ordinary citizens.

What does it matter for ordinary people to stand at water's edge and look out at the water?  After all, rich folk already own the waterfront.

It mattered to Herman Melville - or at least to a young man named Ishmael:

CHAPTER 1. Loomings.

Call me Ishmael. Some years ago—never mind how long precisely—having little or no money in my purse, and nothing particular to interest me on shore, I thought I would sail about a little and see the watery part of the world. It is a way I have of driving off the spleen and regulating the circulation. Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul; whenever I find myself involuntarily pausing before coffin warehouses, and bringing up the rear of every funeral I meet; and especially whenever my hypos get such an upper hand of me, that it requires a strong moral principle to prevent me from deliberately stepping into the street, and methodically knocking people’s hats off—then, I account it high time to get to sea as soon as I can. This is my substitute for pistol and ball. With a philosophical flourish Cato throws himself upon his sword; I quietly take to the ship. There is nothing surprising in this. If they but knew it, almost all men in their degree, some time or other, cherish very nearly the same feelings towards the ocean with me.

There now is your insular city of the Manhattoes, belted round by wharves as Indian isles by coral reefs—commerce surrounds it with her surf. Right and left, the streets take you waterward. Its extreme downtown is the battery, where that noble mole is washed by waves, and cooled by breezes, which a few hours previous were out of sight of land. Look at the crowds of water-gazers there.
Circumambulate the city of a dreamy Sabbath afternoon. Go from Corlears Hook to Coenties Slip, and from thence, by Whitehall, northward. What do you see?—Posted like silent sentinels all around the town, stand thousands upon thousands of mortal men fixed in ocean reveries. Some leaning against the spiles; some seated upon the pier-heads; some looking over the bulwarks of ships from China; some high aloft in the rigging, as if striving to get a still better seaward peep. But these are all landsmen; of week days pent up in lath and plaster—tied to counters, nailed to benches, clinched to desks. How then is this? Are the green fields gone? What do they here?

The transition is a keen one, I assure you, from a schoolmaster to a sailor, and requires a strong decoction of Seneca and the Stoics to enable you to grin and bear it.

But look! here come more crowds, pacing straight for the water, and seemingly bound for a dive. Strange! Nothing will content them but the extremest limit of the land; loitering under the shady lee of yonder warehouses will not suffice. No. They must get just as nigh the water as they possibly can without falling in. And there they stand—miles of them—leagues. Inlanders all, they come from lanes and alleys, streets and avenues—north, east, south, and west. Yet here they all unite. Tell me, does the magnetic virtue of the needles of the compasses of all those ships attract them thither?
Once more. Say you are in the country; in some high land of lakes. Take almost any path you please, and ten to one it carries you down in a dale, and leaves you there by a pool in the stream. There is magic in it. Let the most absent-minded of men be plunged in his deepest reveries—stand that man on his legs, set his feet a-going, and he will infallibly lead you to water, if water there be in all that region. Should you ever be athirst in the great American desert, try this experiment, if your caravan happen to be supplied with a metaphysical professor. Yes, as every one knows, meditation and water are wedded for ever.

But here is an artist. He desires to paint you the dreamiest, shadiest, quietest, most enchanting bit of romantic landscape in all the valley of the Saco. What is the chief element he employs? There stand his trees, each with a hollow trunk, as if a hermit and a crucifix were within; and here sleeps his meadow, and there sleep his cattle; and up from yonder cottage goes a sleepy smoke. Deep into distant woodlands winds a mazy way, reaching to overlapping spurs of mountains bathed in their hill-side blue. But though the picture lies thus tranced, and though this pine-tree shakes down its sighs like leaves upon this shepherd’s head, yet all were vain, unless the shepherd’s eye were fixed upon the magic stream before him. Go visit the Prairies in June, when for scores on scores of miles you wade knee-deep among Tiger-lilies—what is the one charm wanting?—Water—there is not a drop of water there! Were Niagara but a cataract of sand, would you travel your thousand miles to see it? Why did the poor poet of Tennessee, upon suddenly receiving two handfuls of silver, deliberate whether to buy him a coat, which he sadly needed, or invest his money in a pedestrian trip to Rockaway Beach? Why is almost every robust healthy boy with a robust healthy soul in him, at some time or other crazy to go to sea? Why upon your first voyage as a passenger, did you yourself feel such a mystical vibration, when first told that you and your ship were now out of sight of land? Why did the old Persians hold the sea holy? Why did the Greeks give it a separate deity, and own brother of Jove? Surely all this is not without meaning. And still deeper the meaning of that story of Narcissus, who because he could not grasp the tormenting, mild image he saw in the fountain, plunged into it and was drowned. But that same image, we ourselves see in all rivers and oceans. It is the image of the ungraspable phantom of life; and this is the key to it all.

Now, when I say that I am in the habit of going to sea whenever I begin to grow hazy about the eyes, and begin to be over conscious of my lungs, I do not mean to have it inferred that I ever go to sea as a passenger. For to go as a passenger you must needs have a purse, and a purse is but a rag unless you have something in it. Besides, passengers get sea-sick—grow quarrelsome—don’t sleep of nights—do not enjoy themselves much, as a general thing;—no, I never go as a passenger; nor, though I am something of a salt, do I ever go to sea as a Commodore, or a Captain, or a Cook. I abandon the glory and distinction of such offices to those who like them. For my part, I abominate all honourable respectable toils, trials, and tribulations of every kind whatsoever. It is quite as much as I can do to take care of myself, without taking care of ships, barques, brigs, schooners, and what not. And as for going as cook,—though I confess there is considerable glory in that, a cook being a sort of officer on ship-board—yet, somehow, I never fancied broiling fowls;—though once broiled, judiciously buttered, and judgmatically salted and peppered, there is no one who will speak more respectfully, not to say reverentially, of a broiled fowl than I will. It is out of the idolatrous dotings of the old Egyptians upon broiled ibis and roasted river horse, that you see the mummies of those creatures in their huge bake-houses the pyramids.

No, when I go to sea, I go as a simple sailor, right before the mast, plumb down into the forecastle, aloft there to the royal mast-head. True, they rather order me about some, and make me jump from spar to spar, like a grasshopper in a May meadow. And at first, this sort of thing is unpleasant enough. It touches one’s sense of honour, particularly if you come of an old established family in the land, the Van Rensselaers, or Randolphs, or Hardicanutes. And more than all, if just previous to putting your hand into the tar-pot, you have been lording it as a country schoolmaster, making the tallest boys stand in awe of you. The transition is a keen one, I assure you, from a schoolmaster to a sailor, and requires a strong decoction of Seneca and the Stoics to enable you to grin and bear it. But even this wears off in time.

What of it, if some old hunks of a sea-captain orders me to get a broom and sweep down the decks? What does that indignity amount to, weighed, I mean, in the scales of the New Testament? Do you think the archangel Gabriel thinks anything the less of me, because I promptly and respectfully obey that old hunks in that particular instance? Who ain’t a slave? Tell me that. Well, then, however the old sea-captains may order me about—however they may thump and punch me about, I have the satisfaction of knowing that it is all right; that everybody else is one way or other served in much the same way—either in a physical or metaphysical point of view, that is; and so the universal thump is passed round, and all hands should rub each other’s shoulder-blades, and be content.

Again, I always go to sea as a sailor, because they make a point of paying me for my trouble, whereas they never pay passengers a single penny that I ever heard of. On the contrary, passengers themselves must pay. And there is all the difference in the world between paying and being paid. The act of paying is perhaps the most uncomfortable infliction that the two orchard thieves entailed upon us. But BEING PAID,—what will compare with it? The urbane activity with which a man receives money is really marvellous, considering that we so earnestly believe money to be the root of all earthly ills, and that on no account can a monied man enter heaven. Ah! how cheerfully we consign ourselves to perdition!

Finally, I always go to sea as a sailor, because of the wholesome exercise and pure air of the fore-castle deck. For as in this world, head winds are far more prevalent than winds from astern (that is, if you never violate the Pythagorean maxim), so for the most part the Commodore on the quarter-deck gets his atmosphere at second hand from the sailors on the forecastle. He thinks he breathes it first; but not so. In much the same way do the commonalty lead their leaders in many other things, at the same time that the leaders little suspect it. But wherefore it was that after having repeatedly smelt the sea as a merchant sailor, I should now take it into my head to go on a whaling voyage; this the invisible police officer of the Fates, who has the constant surveillance of me, and secretly dogs me, and influences me in some unaccountable way—he can better answer than any one else. And, doubtless, my going on this whaling voyage, formed part of the grand programme of Providence that was drawn up a long time ago. It came in as a sort of brief interlude and solo between more extensive performances. I take it that this part of the bill must have run something like this:
“GRAND CONTESTED ELECTION FOR THE PRESIDENCY OF THE UNITED STATES. “WHALING VOYAGE BY ONE ISHMAEL. “BLOODY BATTLE IN AFFGHANISTAN.”
Though I cannot tell why it was exactly that those stage managers, the Fates, put me down for this shabby part of a whaling voyage, when others were set down for magnificent parts in high tragedies, and short and easy parts in genteel comedies, and jolly parts in farces—though I cannot tell why this was exactly; yet, now that I recall all the circumstances, I think I can see a little into the springs and motives which being cunningly presented to me under various disguises, induced me to set about performing the part I did, besides cajoling me into the delusion that it was a choice resulting from my own unbiased freewill and discriminating judgment.

Chief among these motives was the overwhelming idea of the great whale himself. Such a portentous and mysterious monster roused all my curiosity. Then the wild and distant seas where he rolled his island bulk; the undeliverable, nameless perils of the whale; these, with all the attending marvels of a thousand Patagonian sights and sounds, helped to sway me to my wish. With other men, perhaps, such things would not have been inducements; but as for me, I am tormented with an everlasting itch for things remote. I love to sail forbidden seas, and land on barbarous coasts. Not ignoring what is good, I am quick to perceive a horror, and could still be social with it—would they let me—since it is but well to be on friendly terms with all the inmates of the place one lodges in.
By reason of these things, then, the whaling voyage was welcome; the great flood-gates of the wonder-world swung open, and in the wild conceits that swayed me to my purpose, two and two there floated into my inmost soul, endless processions of the whale, and, mid most of them all, one grand hooded phantom, like a snow hill in the air.

____

David Cox Letter To Oriental Town Commissioners

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

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

In January, the Town Board simply rejected my proposals.

Here is the letter:

"January 26, 2015

From: David Cox

To: Commissioners, Town of Oriental

Subj: South Avenue

Dear Commissioner:

As you are aware, I have filed an appeal of the Superior Court’s recent orders dismissing my challenge of the Board’s decision to close South Avenue.

I am writing to explain my appeal, to assess the current status and potential future paths for my challenge, and to describe a proposal I am submitting to the Town’s attorneys.

First, I must explain that my challenge to the Board’s closure of South Avenue is not identical to my challenge of Avenue A. If it were identical, I would not pursue the South Avenue challenge after the Court of Appeals decision in Avenue A, and I certainly would not appeal the case to the same court which upheld dismissal of the Avenue A case.

The difference between the two cases is that in Avenue A I complained of infringements on “public rights,” while in South Avenue I also complain of infringements on my private property rights. To understand the importance of this difference, it is helpful to look closely at what the Court of Appeals decided in Avenue A and what it did not decide.

The Court of Appeals limited its decision to determining whether my complaint and arguments qualified me as “a person aggrieved” as that undefined term is used in the appeal provision of the street closure statute.

My basic argument in the Avenue A case was that I was a “person aggrieved” because:

1) the closure of Avenue A infringed on the rights of the public to use the public right of way;

2) I am a member of the public; and

3) I am “aggrieved” in the dictionary meaning of the term (“discontented”) with the closure.

The Court of Appeals did not accept this argument. Instead, the Court borrowed from cases defining the term “aggrieved parties” in zoning cases to decide that “any person aggrieved” in the street closure statute means:

“one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property.”

As the Court noted, I did not allege in my Avenue A complaint that the closure of that street caused any personal injury to my private property rights or damage my property value, but instead alleged only violations of “broad, public rights.” Given the Court’s definition of the term, it found that my “public rights” complaints did not qualify me as a “person aggrieved” under the statute.

The Court did not decide whether the Town’s deal with Mr. Fulcher and the closing of Avenue A pursuant to that deal was a lawful exercise of the Town’s legal authority.

The Court did not adopt the Town’s arguments that only abutting property owners may challenge street closures. If the Court believed that, it would have defined “person aggrieved” as including only persons owning property abutting the closed street.

The only thing the Court of Appeals determined was that because I had not included in my complaint any allegations that I had suffered personal injury to any private property interests of my own, I did not qualify as a “person aggrieved” within the meaning of the statute which establishes the procedure for appealing town street closures.

The Court went out of its way to note (twice) that it was not ruling on my separate challenge to the South Avenue closure. In addition, the Court made it clear that if I did include allegations and arguments showing personal injury to my own private property interests in the South Avenue challenge I could qualify as a “person aggrieved” with standing to pursue that separate challenge.

Because I have alleged the South Avenue closure caused injury to my private property interests, and because I am arguing in this case, based on a long line of North Carolina Court of Appeals and Supreme Court decisions, that my property interests include a private property right in the South Avenue right of way, my South Avenue challenge satisfies the elements the Court of Appeals found lacking in the Avenue A challenge.

Unfortunately the Superior Court ignored the central ruling of the Court of Appeals’ Avenue A decision and the fact that my South Avenue challenge includes the elements required to show I am a “person aggrieved” with standing to appeal the South Avenue closure. This is unfortunate because it will now require an appeal to the Court of Appeals before the case can proceed to the next steps.

Keep in mind that the question before the courts right now is not whether the town acted within its authority in closing South Avenue. The question at this point is simply whether I am a person who can ask the courts to determine whether the town did act within its authority. I am confident that the Court of Appeals will find that my South Avenue complaint meets the requirements that Court set out in its Avenue A decision for establishing the right to have the courts review the closure.

While I believe that upon review of the Board’s closure vote, the courts will find that the Board did not comply with the statutory requirements for closing a street, at this point the issue under appeal is my right to have a court review whether the closure complied with the statute, and not the “merits” of whether it did comply with the statute.

That said, I am increasingly dismayed at the amount of taxpayer money which is being invested in delaying a trial on the merits of my challenge.

Though I would prefer that South Avenue be returned to its status as a street because I believe it is a superior open space and water access point compared with the “net-house” property, I do wish to present the Board with a proposal to end further legal proceedings.

I am therefore separately forwarding to the Town’s attorneys a proposal which would satisfy my most serious concerns about the Town’s deal with Mr. Fulcher, and also allow the Town to use the new property as a “replacement” public space and water access park.

My proposal would permit the kinds of plans the Board has been considering for the property, including attendant buildings and service potential. It would require that promises which the Board has already made about the property, but which have not yet been put into effect, be fulfilled.

In order to help you understand why I continue to challenge the South Avenue closure, and the purpose of some elements of my proposal, here is an abridged version of the arguments I will make to the Court of Appeals if we are unable to reach a settlement.

My Private Property Rights in South Avenue

The Town’s attorneys have argued to the courts that the Town has a right to close public rights of way. I agree that a town may close a public right of way, if, and only if, the requirements of the closure statute are met. Obviously I do not agree that the statutory requirements were met in the closures of either Avenue A or South Avenue, or I would not have brought legal proceedings seeking to reverse those closures.

As explained above, however, the question I am currently appealing is only whether I have a right to seek a court determination of that question.

The Court of Appeals ruled in the Avenue A case that to establish my right to seek such a determination, I must complain that the closure injures my personal property interests.

Unlike my Avenue A complaint, my South Avenue challenge does allege that the closure injures my personal property interests. That complaint is supported by innumerable North Carolina court decisions over the course of more than 100 years which establish:

“It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys [any of] the lots … with reference to the plat… he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public.”

“Purchasers of [such subdivision] lots … acquire vested rights to have all and each of the streets shown on the map kept open.”

“To have deprived those who purchased lots with reference to the original map, and those claiming under them, of appurtenant rights in and to the streets, for the purpose of vesting such rights in another merely for private use would run counter to provisions of the Constitution of North Carolina, Art. I, Sec. 17, and to the 14^th 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"

Oriental New Town Dock - What Might Have Been

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

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

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

January 21 County Commissioners' Meeting - Oriental Commissioners Lose

There's an old rule of thumb in politics as well as other areas of human endeavor - if you are in a hole, stop digging!

At least two of the three-member delegation from the Town of Oriental to the County Commission need refresher training on that point.

Mayor Bill Sage, accompanied by Commissioner Summers and Commissioner White represented the Town in an effort to obtain support from the County Commission for a proposed local bill from the state legislature to extend Town jurisdiction over adjacent waters to a distance of 200 yards. After complimenting the previous speaker (who reported results of the annual audit) for a succinct presentation, Mayor Sage proceeded to give a convoluted and lengthy presentation. So far as I could tell, he provided no visual aids except the text of a proposed bill. At one point, he mentioned "public trust waters."

When commissioners asked some fairly direct questions (was there a public hearing? did the Town Board approve the text of the proposed bill?, etc.), he avoided direct answers. The questions grew increasingly skeptical, if not downright hostile. Discussion about "public trust waters" was mostly in opposition to the Town's scheme.

County Commissioner Kenny Heath made a motion to the effect that the commissioners not only don't support the draft bill, but will not support it unless there is a county-wide public hearing. The motion passed unanimously.

Commissioner Summers asked to speak during public comment period.

Bad idea.

When you're in a hole, stop digging.

Oriental Race For Commissioner

As Ben Cox announced at last week's candidate forum, he has started a facebook page for his campaign. He has just added an important note relating to the Town's law suit concerning South Avenue.

The issues concerning rights of way may seem complicated, but they really aren't. Those who are curious and also who understand that commissioners should focus on the future of the Town as well as the present can read his fuller explanation here. I recommend it.

It's All About The Water - And Rights Of Way

Last year, when I was offering the Town's elected officials every suggestion I could muster on how to avoid legal missteps on South Avenue, I advised them to seek an opinion from the Attorney General.

I wasn't flying blind. I had a copy of an advisory opinion issued by the NC Justice Department in 1995 addressed to Oriental's Town Attorney. The opinion thoroughly explored right of way law across the nation as it concerned streets leading to navigable waters. I even called Town official's attention to the letter, which I knew was in Town files. That's where I got my copy.

When the mayor replied that the Town didn't want its hands tied, I wondered if they had actually consulted the document.

As it turns out, the Attorney General's advisory opinion is posted on the NC Department of Justice web site here. It totally refutes many of the claims made by the Town's attorneys at the court hearing of March 4, 2013.

Another opinion, that of the North Carolina Court of Appeals in the case of the Town of Oriental v. Henry, also in the Town's files, counters many points made on March 4 by Town's attorney. Here is that opinion, on the Court of Appeals web site.

A careful reading of these two opinions will reward anyone interested in legal issues associated with rights of way, especially those leading to navigable waters.

Public Access To Water: Big Problem On Chesapeake

Chesapeake Bay: 11,684 miles of shoreline, equal to the distance of the entire West Coast, from Mexico to Canada. But only 2% of it provides public access to the water.

Good article in yesterday's Washington Post about the problem and efforts to correct it. Some describe the Chesapeake as a large gated community.

It's hard to correct a problem this size. Once public access points are in private hands, the public never gets them back.

That's why Oriental's citizens have fought so hard to keep public access points like South Avenue in public hands.

It's all about the water.

Court Hearing(s) Update: July 8 Schedule

We've been a bit busy moving back into our hurricane damaged home Unfinished but livable), so I have made few posts. Here's what's new:

Town of Oriental has filed a motion to dismiss my appeal of the closing of South Avenue: On calendar for Pamlico County Court House at 2:00 pm July 8;
Kirby Smith, attorney retained to pursue my appeal of the order Judge Alford entered April 10 granting Town's motion to dismiss my appeal of closing of Avenue A, has filed a motion for a stay: On calendar for Pamlico County Court House at 2:00 pm July 8;
I have filed a motion for a temporary injunction against further actions by Town transferring rights of way to Chris Fulcher or anyone else until after completion of appellate process;
Town of Oriental has filed a motion against me alleging that I violated Rule 11 of North Carolina Civil Procedures and seeking sanctions: On calendar for Pamlico County Court House at 2:00 pm July 8.

Busy Monday at court next week.

They Said You Can't Fight City Hall: Yes, You Can

You might not necessarily win, even if you are right. But it is possible to fight City Hall.

It would be better to persuade City Hall to do the right thing in the first place. I didn't succeed at that. This is an example of the kind of thing I've been writing for the past year and a half.

I lost at the first level of Superior Court. The Judge dismissed my complaint. But I have the right to appeal and have filed my notice of appeal. I have also filed a new complaint about the Town's action closing South Avenue.

I don't know if this qualifies as "David v. Goliath," or a lesser struggle. I suspect it is the latter.

In any event, it isn't just my struggle. I have consulted with a couple of dozen very knowledgeable citizens at each step of the way.

It will be long and expensive to try to stop the Town's sale or barter of public rights of way and to protect public access to North Carolina's Public Trust Waters. Just yesterday I spent more than $220 ordering a verbatim transcript of the hearing on the Town's motions to dismiss.

Anyone wanting to contribute to the protection of streets leading to the water can contribute to: ONC Protect Streets, P.O. Box 236, Oriental, NC 28571.

We could easily be at it for another year or more.

Oriental Land Swap - Or Is It?

Anyone curious about what I have been up to lately can get a good idea by reading today's article in Town Dock. I think it's a fair summary of the whole issue, starting several years ago.

My role in the Town's lawsuit against a local landowner was actually modest. The Town decided in 2002, nearly four years before I moved here, to file the suit. Much of the information in the Town's complaint was researched by Grace Evans, a local citizen and former member of the Town Board and many other boards, who uncovered records in the Town minutes and actually caused those minutes to be preserved.

The case goes before Judge Alford at the Pamlico County courthouse Monday morning, March 4th, to hear motions by the Town to dismiss my complaint and an amendment thereto. The court will open at 10:00 to hear motions.

Cox v. Town Of Oriental

Some readers are aware that I filed an appeal last Thursday to the closing by the Town of Oriental of Avenue A on July 3 after a public hearing.

I filed the appeal within the statutory deadline of thirty days following the permanent closing of the street. A civil summons notifying the town of the appeal and providing a copy was served on Mayor Sage Monday morning about ten o'clock.

The mayor transmitted the appeal to Mr. Scott Davis, the Town Attorney, and to the town's insurance carrier.

Anyone who wishes to read a copy of the appeal will find a link on the home page of TownDock.net. I think the appeal speaks for itself.

Killing Oriental's Golden Egg Goose

I've been listening to a recording of the Town's public hearing of July 3rd concerning closure of streets and the related contract between the Town and Chris Fulcher. Very confusing.

There were some interesting passages during the discussion. At one point, Commissioner Summers observed:

“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."

What I believe Commissioner Summers is talking about is the Town Board's decision, several years ago, to abandon the public's riparian interests in a very attractive anchorage area that enticed many boaters to visit the Town, and to cede the area to use by the private developers of Oriental Harbor Marina.

The Town let marina developers steal the public's riparian waters, which the Town is supposed to protect in trust for the public.

Under normal riparian rules, the boundary between the public waters extending from the terminus of the South Water Street public right-or-way (ROW) and those of the marina developers is a line running at right angles to the center-line of the channel.

The developers plat below, however, shows the southerly limit of the marina's riparian rights as running along a line extended from the northern edge of South Water Street out into the harbor.  On the plat this line it is labeled as "Riparian Line / Extension of Water Street Right of Way" - it is hard to read, so I have drawn a red dash-dot line over it, labelled "Extension of limit of Water St. ROW."

The Town Board either did not understand, or did not care, or (even worse) did care, that the Riparian border line platted by the developers was incorrect and bit heavily into the remaining riparian area extending from the public trust ROW.

About twenty of Oriental Harbor Marina's slips are actually within the public's riparian waters extending from the South Water Street terminus.  About five more slips are within the "15' buffer zone," from which the Town could have excluded marina construction had the Town been willing to assert the public's riparian rights.

This was outright theft by the developers, aided and abetted by the collusion or gross negligence of the Town Board.

It is what can happen if the Town's citizens don't pay careful attention to how the Town Board manages public trust assets.

Who is protecting the public?

(Click on Map for Larger View)

Here is the un-retouched detail (except for my pencil-marks) :

(Click on plat for larger view)

South Avenue Closing: Financial Folly?

It may be financial folly for the Town of Oriental to own waterfront property in fee simple instead of in trust for the public.

The Town should review North Carolina Administrative Code Title 15A, Chapter 7, Coastal Management. The Town should also review its own CAMA land use plan, adopted five years ago. Taken together, both the policy of the State of North Carolina and the plans and policy of the Town of Oriental support public access to public trust waters through dedicating access points to the public. State policy strongly and explicitly encourages use of street ends as water access points.

CAMA/SeaGrant funding to acquire water access points requires the points to be dedicated to the public in perpetuity.

CAMA grants for improvement of water access facilities that are not so dedicated must be repaid on a proportional basis if the property is ever sold. For property with a cost basis of zero, the repayment might be very high indeed.

The effect of the Town's stubborn insistence on fee simple ownership instead of public dedication may be that the Town won't be able to get CAMA/SeaGrant funds for improvements to or maintenance of Municipal-owned property that is not dedicated to public use, or that the Town may find conditions of such funds prohibit accepting them.

Has the Town Board looked into this possible consequence of actions they are about to take?

Capabilities Vs Intentions And South Avenue

In matters of military intelligence, a common admonition is that evaluation should be based on capabilities rather than intentions. For example, rather than guess that in late 1941 Japan would attack in southeast Asia, we should have known that they had the capability of attacking Hawaii and prepared for it.

I have a problem with that concept. At least in the short run, the only thing that matters is intentions. We assumed, for example, that Great Britain had no intention to attack the United States, though they had the capability. Same with France. So we wasted no time and resources planning to defend against their forces.

We focused our intelligence gathering on countries that might plausibly become enemies. And we did our best to find out the specific intentions.

After the attack on Pearl Harbor, we succeeded beyond expectations at uncovering specific plans, schedules, order of battle, and other details. And we used the information. That's why our forces were in the right position to succeed at Coral Sea and Midway. It helped us track down German submarines. It helped win the Battle of Britain.

In some contexts, though, it makes sense to focus on capabilities rather than intentions. Intentions change. When planning for the future and developing policies, it makes sense to focus more on what CAN be done rather than what WILL be done.

This is especially so when developing public policy.

When writing laws, drafting regulations, putting policies in place, it does not matter what the present intentions of office holders may be. Elections may change who is in office. In this context it makes no sense to ask how incumbents plan to use their authority.

My advice: always assume that if law and regulation allow something to be done, then at some point it will be done.

That's why I oppose Oriental's effort to exchange the South Avenue right of way which can't be sold for a waterfront parcel owned in fee simple which can be sold. Assume that if it can be sold, at some point it will be sold. Once the waterfront is in private hands, the public will never get it back.

So the public's interest in any such acquisition must  be protected.

Yes, I want to tie the hands of future town boards.

South Avenue Special Meeting July 9

Monday evening's special meeting of Oriental's Town Board opened at 5:30 PM, then immediately went into closed session to "consult with the attorney." Both the Town Attorney, Scott Davis and the Town Manager took part in the closed session. About an hour and a half later, the Board came out of closed session and adjourned. In response to a question after adjournment, Mayor Sage stated that no action by the Board is contemplated before the next regular meeting in August.

Thoughts On Today's South Avenue Meeting

 Today's special meeting of the Board of Commissioners of Oriental at 5:30PM (Monday, July 9, 2012) at First Baptist Church Fellowship Hall on Broad Street, is for Town Board to consult with counsel concerning the South Avenue Street end transactions and the Fulcher contract with the Town. The Board may go into closed session during the meeting.

It isn't clear what the meeting intends to accomplish, but the Town has already held the required public hearing. The Board can close South Avenue at any time, though they seem inclined currently to do more research before taking such an irrevocable step. 

This would be a good time for residents to make their views known to the Board.

Special Meeting Oriental Town Board Mon. 5:30

Posted this afternoon at the Town of Oriental Web site:

"Friday, July 06, 2012 at 1:20 PM

The manager is requested to distribute this notice to all appropriate parties.

"I hereby call a special meeting of the Board of Commissioners of Oriental for 5:30PM on Monday, July 9, 2012 to First Baptist Church Fellowship Hall on Broad Street. The purpose of the meeting is to consult with counsel concerning the South Avenue Street end transactions and the Fulcher contract with the Town. The Board may go into closed session during this meeting."

"Bill Sage, Mayor"

We have no idea what the meeting intends to accomplish.

Worth remembering: The Town has already held the required public hearing. The Board can close the street at any time.

South Avenue

Last Tuesday night, Oriental Town Attorney Scott Davis at one point said he's convinced there's a legal way for the Town Board to close South Avenue and other streets and obtain the waterfront parcel on Raccoon Creek that Chris Fulcher offered to donate the Town. So do I and for the past six months I have been quietly feeding information to the Town Board along those lines.

But the Board seemed committed to the existing contract which barters rights of way held in trust for the public for property rights held in fee simple which the Town can sell at any time. I remain opposed to that scheme, as I wrote in yesterday's County Compass.

There are signs at least some commissioners may be rethinking the issue. I hope so.