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.
Sunday, August 4, 2013
Saturday, August 3, 2013
My Thoughts Of A Year Ago On South Avenue
In the interest of informing the public about the South Avenue case, I thought it would be useful to share a letter I sent to the mayor and Town Board last June 15, more than two seeks before the Board hearing on closing Avenue A and South Avenue. This was one of a series of similar communications to Town officials that I had sent starting January 28, 2012.
I had hoped by bringing legal precedents to the Board's attention that they would proceed with caution.
It didn't work. Here's the letter:
See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, (“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”);
Eugene McQuillin, Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument.” The power to maintain and regulate the use of the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);
The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, and transforms the town into a proprietor rather than a trustee of public streets.
This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the public, liberally construed for its benefit, strictly construed to its detriment." McQuillen at 569.
One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes any temptation for the governing body to divest itself of rights of way held in the public trust for short term fiscal benefit.
To barter this town's most irreplaceable long-term asset - public access to the public trust waters of our harbor - for real estate held in fee simple, will inevitably tempt future town boards to sell the resulting waterfront property to meet short term fiscal needs. Once sold, the public will never get it back. Ever.
I had hoped by bringing legal precedents to the Board's attention that they would proceed with caution.
It didn't work. Here's the letter:
David R.
Cox
409
Academy Street
Oriental,
NC 28571
252-249-7219
June 15,
2012
The
Honorable William Sage
Mayor, Town
of Oriental
507 Church
Street
Oriental, NC
28571
Re: Proposal
to Vacate South Avenue and Avenue A and Agreement between the TOWN OF
ORIENTAL and G.CHRISTOPHER FULCHER et al
Dear Mr.
Mayor:
I oppose the
contract approved by the board of commissioners of the town of
Oriental on May 17 between the town and Mr. Chris Fulcher. I oppose
it not because of the resulting shape and size of the property
accruing to the town, though I think a better result could have been
negotiated.
I oppose it
because it violates a fundamental principle of right of way law: “the
governing body shall not sell or barter the streets and alleys which
it holds in trust for the benefit of the public.”
I have no specialized legal resources, but have easily located
authoritative legal references confirming that a town may not sell or
barter a public right of way:
"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),
"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),
See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, (“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”);
Eugene McQuillin, Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument.” The power to maintain and regulate the use of the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);
The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, and transforms the town into a proprietor rather than a trustee of public streets.
This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the public, liberally construed for its benefit, strictly construed to its detriment." McQuillen at 569.
One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes any temptation for the governing body to divest itself of rights of way held in the public trust for short term fiscal benefit.
To barter this town's most irreplaceable long-term asset - public access to the public trust waters of our harbor - for real estate held in fee simple, will inevitably tempt future town boards to sell the resulting waterfront property to meet short term fiscal needs. Once sold, the public will never get it back. Ever.
To barter a
right of way, dedicated in perpetuity by Mr. R.P. Midyette for the
purpose of public access to the water, for a parcel of unrestricted
real estate which a future board of commissioners could sell without
even a public hearing does not protect the public interest.
Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"
Why? Because our rights of way are held in trust.
Town Boards may not always keep the town's future in mind. We need to help them do so.
There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.
The contract approved by the town board on May 17 isn't it.
Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"
Why? Because our rights of way are held in trust.
Town Boards may not always keep the town's future in mind. We need to help them do so.
There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.
The contract approved by the town board on May 17 isn't it.
Sincerely,
David R. Cox
CC: Mr.
Sherrill Styron, Commissioner
Mr. Warren
Johnson, Commissioner
Mr. Larry
Summers, Commissioner
Ms. Barbara
Venturi, Commissioner
Ms.
Michelle Bissette, Commissioner
Mr. Robert
J. Maxbauer, Town Manager
Friday, August 2, 2013
Do You Know Who Your Commissioner Is?
Recent arrivals to the Town of Oriental sometimes ask: "who is my commissioner?"
Good question. The short answer is: "you don't have one."
One of the consequences of the fact that we elect all of our Town Commissioners at large is that no commissioner represents any particular part of Town. You can't, for example, call Commissioner Jones and say, "there is a pothole on my street that needs repair" and be confident that Commissioner Jones will look into it because he represents your district.
Our system of government, in other words, is not inherently responsive to citizen concerns.
This situation has been exacerbated in recent years by the Town Board's refusal to engage in exchanges of information with citizens at public meetings. Not only does this show a lack of respect for the public, it frequently deprives the Town Board of insights and information it needs in order to do its job.
There is a better way.
North Carolina General Statutes allow towns to modify their charters by ordinance. Such ordinances must pick from a menu of choices, and may allow a referendum on each change made.
One of the choices is to elect commissioners from districts, or a mix of commissioners from districts and at large.
I recommend a mix of three commissioners elected from districts representing equal numbers of residents plus two elected at large.
That way, we would each know who our commissioner is.
Good question. The short answer is: "you don't have one."
One of the consequences of the fact that we elect all of our Town Commissioners at large is that no commissioner represents any particular part of Town. You can't, for example, call Commissioner Jones and say, "there is a pothole on my street that needs repair" and be confident that Commissioner Jones will look into it because he represents your district.
Our system of government, in other words, is not inherently responsive to citizen concerns.
This situation has been exacerbated in recent years by the Town Board's refusal to engage in exchanges of information with citizens at public meetings. Not only does this show a lack of respect for the public, it frequently deprives the Town Board of insights and information it needs in order to do its job.
There is a better way.
North Carolina General Statutes allow towns to modify their charters by ordinance. Such ordinances must pick from a menu of choices, and may allow a referendum on each change made.
One of the choices is to elect commissioners from districts, or a mix of commissioners from districts and at large.
I recommend a mix of three commissioners elected from districts representing equal numbers of residents plus two elected at large.
That way, we would each know who our commissioner is.
Wednesday, July 31, 2013
An Oklahoma City Surgical Hospital Leads In Cost Transparency: Who Knew?
Want to know how hospital costs compare for surgical procedures? You mostly can't find out.
Unless you have the surgery done in Oklahoma City.
Good for them!
Unless you have the surgery done in Oklahoma City.
Good for them!
Monday, July 29, 2013
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.
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.
Sunday, July 28, 2013
Seventy Years Ago: Mussolini Falls
July 28, 1943: Franklin Delano Roosevelt delivers a fireside chat on the fall of Mussolini. And what a chat it was!
No American who heard FDR speak on that day could fail to note that we were all in this together, and we were winning!
Not many leaders have ever had the skill of FDR at putting events into perspective.
Read the whole, inspiring fireside chat here.
And celebrate with a cup of unrationed coffee.
No American who heard FDR speak on that day could fail to note that we were all in this together, and we were winning!
Not many leaders have ever had the skill of FDR at putting events into perspective.
Read the whole, inspiring fireside chat here.
And celebrate with a cup of unrationed coffee.
Saturday, July 27, 2013
Voter ID Is Just The Beginning
We've seen this movie before. A couple of years ago, I called attention to the voter suppression effort in Texas.
Now Texas has to take a back seat to North Carolina.
This is all so familiar. Until the US Supreme Court ruled them unconstitutional in 1944, Texas, like other states of the former Confederacy, held whites-only primaries. In 1960, when I attempted to register in Mississippi while I was serving at sea in the Western Pacific, the Washington County registrar told me they had received my federal post card application form too late. I knew that was a lie. I was the ship's voting officer and I knew that voter registration in Mississippi was permanent. How could I be too late for permanent? I also knew what the real problem was. There was no block in the application to indicate race. What if the registrar had inadvertently registered a black man?
Return with us now to the thrilling days of yesteryear.
Now Texas has to take a back seat to North Carolina.
This is all so familiar. Until the US Supreme Court ruled them unconstitutional in 1944, Texas, like other states of the former Confederacy, held whites-only primaries. In 1960, when I attempted to register in Mississippi while I was serving at sea in the Western Pacific, the Washington County registrar told me they had received my federal post card application form too late. I knew that was a lie. I was the ship's voting officer and I knew that voter registration in Mississippi was permanent. How could I be too late for permanent? I also knew what the real problem was. There was no block in the application to indicate race. What if the registrar had inadvertently registered a black man?
Return with us now to the thrilling days of yesteryear.
Changes To NC Election Law: Down To Forty-Nine Pages
I just printed off a copy of HB 589, as passed by the General Assembly. Here is the text.
It should be titled the Voter Obstruction and Suppression Act of 2013. The voter photo ID provision has received the most attention, but there are a lot more provisions that need scrutiny.
Within Pamlico County, there was concern about a provision doing away with the direct record (touch screen) voting equipment that we use and are very satisfied with. The bill had called for eliminating them for all elections after January 1, 2014. We had done a quick estimate and concluded the change to scanned paper ballots would cost the County about a quarter of a million dollars. Implementation of that change has now been delayed until 2018.
That's about the only moderately good news. Details later.
It should be titled the Voter Obstruction and Suppression Act of 2013. The voter photo ID provision has received the most attention, but there are a lot more provisions that need scrutiny.
Within Pamlico County, there was concern about a provision doing away with the direct record (touch screen) voting equipment that we use and are very satisfied with. The bill had called for eliminating them for all elections after January 1, 2014. We had done a quick estimate and concluded the change to scanned paper ballots would cost the County about a quarter of a million dollars. Implementation of that change has now been delayed until 2018.
That's about the only moderately good news. Details later.
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