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.”
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