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The proposed land swap on and around Oriental’s harbor has sparked much conversation in town and in the Inbox here at TownDock.net.

Here are some emails and excerpts of the correspondence:

The picture of the two junior sailors is great, but that ugly, roofless structure behind them is reminiscent of Sherman’s march through GA and the Carolinas.

I’d be careful about giving up that easement, you have very little control of what would be done with the increased size of that property.

Oriental’s future lies more with tourism than with a fishing industry which is declining and severely threatened by seafood coming in from the South Pacific.

John Alexander
Old sailor and wannabe resident
St. Simon’s Island, GA

Dear Editor:

I wish to offer my own thoughts regarding some questions raised in Ms. Candy Bohmert’s letter of 2/12, and to offer my own concerns about the proposed “land swap.”

Ms. Bohmert’s First question: “how can the town trade something it doesn’t own?

As I understand it, the Town is only offering to trade something it does “own” – its right to maintain an easement over the dirt for use as a public right-of-way (ROW) in perpetuity. The Town does not claim any interest in the “dirt under the street,” but only the right to maintain a public ROW easement above that dirt. The identity of the original dedicator is almost irrelevant,* because the NC “vacation” (abandonment) statute says that when a town vacates a ROW under the statute, “all right, title, and interest in the right‑of‑way shall be conclusively presumed to be vested in those persons owning lots or parcels of land adjacent to the street or alley… to the centerline of the street…” NC General Statutes § 160A-299©

The question I would ask is: How can the Town trade a public right-of-way interest for cash or something of immediate cash value?

As near as I can determine, the current proposal may well violate the developer-protecting NC common law principle that a town “has no right to relinquish or give away [a street] to a private individual for private purposes.” (Hughes v. Clark, 134 N.C. 457 (1904), as cited by David Lawrence in “Property Interests in North Carolina Streets, David M. Lawrence, at p. 50, fn 10.) Here the purposes of the give-away appear to amount primarily to a private benefit for Mr. Fulcher, with the secondary quasi-private benefit to the Town’s “proprietary” capacity to act as a private property owner, operate a business, acquire, own and dispose of real property.

Under common law, using a dedicated public ROW for purposes inconsistent with the developer/dedicator’s intended uses is tortious interference with the property rights of that developer. If it is done unintentionally, the tort is called “misuser,” if done intentionally, “conversion.” It is this principle that prompted the town to cease renewing Neuse Ways Co. (Lacy Henry) lease of the South Avenue terminus, as acknowledged in an April 1995 grant application the Town submitted to the NC Public Beach and Waterfront Access Program:

“in 1992 when an application to renew the [Neuse Ways Co. lease of the street end] was submitted, the town, after researching the subject, denied the renewal because it was not legal.”

In the same 1995 grant application mentioned above, the Town acknowledged that:

“Since the land is a right-of-way, we realize that it must be maintained as such… Since this is the only remaining piece of publicly owned property [sic] on the town’s harbor, we citizens feel that it is important to see that it is restored to what it was first intended to be [by the dedicating developer] – a public right of way to the public waters of the town.” (emphasis in the original)

Now the Town proposes to vacate public access right in exchange for fee simple ownership in nearby real property. The Town may well decide to provide public access to the water on that property, but it will have absolutely no duty to do so now or in the future. Once the Town owns property in fee-simple it will have the same property rights a private person or corporation has to sell the property at any time to any other person. The Town could also charge revenue-generating fees to access and use the property – think $10/hr. Raleigh-owned off-street parking lots and $2.40/ft. dockage fees at the Beaufort-owned Town Dock.

Is such an exchange consistent with the original developer/dedicator’s intent that South Avenue be perpetually dedicated to the public use as a ROW? Is it a proper purpose that is not “contrary to the public interest?” Only a judge can say for sure, I suppose, but it doesn’t pass the smell test with this writer.

My Modest Proposal:

I would ask the Town commissioners and Mr. Fulcher to consider other methods by which the dedicator’s intent, the public’s right of access to the water, and Mr. Fulcher’s desire to consolidate his property could be accomplished in a fairly straightforward way that avoids many of the stickier questions raised by the current proposal.

An exchange of one 60 foot wide ROW leading into the harbor for a different 60 foot wide property leading into the harbor dedicated to the public use would not constitute misuser or conversion, because the purpose of the closing would be to provide equivalent public access in substantially the same location. It would not be for an improper purpose because the Town would not be trading the ROW for cash.

Perhaps Mr. Fulcher could offer a public dedication of a new 60’ wide strip “should and when the town choose to vacate the South Avenue terminus” (or something like that.) If the Town then vacates South Avenue, it would be with the knowledge that an identically-sized dedication to public use would immediately arise in the new location. I think this, or something like it, would be consistent with the developer/dedicator’s intent that a 60’ wide public water access point be available on Raccoon Creek, would preserve the public’s interest in a guaranteed right of access in perpetuity (not possible if Town owns the land in fee simple), and, as a side-effect, allowing Mr. Fulcher to consolidate his nearby properties.

Regarding buildings etc. not allowed on a public ROW, I do not believe the dedication would have to be restricted to a public ROW. Because the only real interest the public still has in any of the Chadwick peninsula streets is the maintenance of public water access, I would suggest that any public dedication which includes equivalent public access to the water would be consistent with the dedicator’s intent. The property could be dedicated as a “park” or “public water access point” and the offer of dedication could explicitly provide that certain improvements (buildings and facilities) related to the purpose of providing public access to the water would be allowed on the property.

Avenue A should be vacated by the Town because it no longer provides any public service. The Town should not withhold the vacation of that street simply as a bargaining chip to prompt Mr. Fulcher into giving the Town cash or its equivalent, fee-simple property, any more than it should agree to vacate the water access of South Avenue in exchange for the same.

I would urge the Town Commissioners to contact Prof. David M. Lawrence, and to seek Attorney General opinions before proceeding with the current proposal, and to consider accepting only an equivalent exchange of public dedications.

Thank you for your kind attention to this matter.

Regards,

Benjamin Cox,
Oriental
2/14/12

My first question is: why are we making a decision so quickly about some property that took successive Town Boards over a period of some twenty years to acquire?

My second question is: if various town officials insist that the South Avenue right-of-way has no monetary value, why did previous Boards expend some $50,000 to acquire it, with many volunteers/taxpayers supporting and working on this acquisition before and after the case was settled?

My third concern is the total lack of hard figures:

1. High and low estimates of the cost of a pier with drawings of location and size designated;

2. The cost and maintenance of a pump out station and bathhouse for what will be overnight or a few days accommodation of small boats;

3. The desirability of having a “welcome” center adjacent to the Oriental Marina’s fuel docks and to its dumpsters. With CAMA setbacks and Town pervious footage required, could all the proposed uses be accommodated?

4. The depth of water surrounding where the commercial pier is. (Our harbor, Raccoon Creek, is dredged regularly by its riparian owners and storms and traffic make this necessary and not finite.)

5. Hard figures as to the cost of buffering the South Avenue shore line and whether bulkheading, riprap, or some other means of stabilization would be used, with the cost of each.

There are other costs and concerns that I have not enumerated here.

As to giving up Avenue A, as well, for the “swap land,” that is another question that previous Boards had decided in other cases was not a good idea for the town to do. Perhaps a clear swap of the property being offered, with the Town retaining South Avenue, for giving up of a “valuable” piece of property: i.e. Avenue A, might be considered after all the ramifications of zoning and the Towns building codes are made clear.

Grace B. Evans
Oriental
2/13/12

Editor: I have many questions about the property at South Avenue. The first one is how can the town trade something it doesn’t own? The judge in that case specifically said that the Town does not own the property under the right of way. We were never sure who did, but it’s my understanding that it is not a “fee simple” piece of property that the Town can sell or trade. I didn’t get a good answer from our attorney when I asked that question, so, hopefully that’s been worked out.

Second: The Oriental Marina is one of those businesses that helped to build the Town. Many concessions to the Town by the owners are why we currently have a free town dock on Hodges Street. The first two slips from the street are not supposed to blocked by transients. The Town hasn’t been enforcing that rule, so they lose revenue. Doesn’t seem like the Town cares.

The Marina currently charges $5 for transients to take a shower and their restrooms are open to the public, as are most of the businesses in that area. While the sewer charges are sometimes hard for the businesses to swallow, they do understand that restrooms are an attraction to their business.

Third: Our marina’s and hotels are the “anchor” businesses in this Town. Without them, there’s not much left for a visitor to come here for. And this is the only town in Pamlico that has them. Our businesses are hurting now more than ever. So why would the Town, who specifically targets the motels for occupancy tax, now want to go into competition with them, using their own money? The marina needs the income to stay in business. The Town doesn’t need to make a profit, but what happens if those who depend on income from those slips, goes bankrupt because they can’t pay their bills? How will that be good for the Town? Hurricane Irene didn’t just happen to home owners. It happened to the businesses, too. Between insurance companies and FEMA, the owners may not be able to recover the out of pocket expenses they had to use to rebuild and to accommodate the visitors that came the following weekend. Which also bolstered the other businesses in town.

If we want to maintain our status as a “special place” I suggest we think long and hard about where we are now and where we want to be in the future. How much free dockage do we need and what’s the true cost of that dockage. If bathrooms are built, who will clean them and how much will that cost? When will they be open? Will they be monitored? Will this be an attraction for those live aboards on shoe-string budgets? How will those be monitored? Who will clean the pump out? As a pump out owner, if it’s not monitored, there’s no telling what can be sucked up in them. That can be a very unpleasant! If the pump out is clogged on a weekend, will the marina’s restaurant customers have to put up with the smell? Does that mean that, once again, the Marina will suffer loss due to the Towns carelessness? Just food for thought.

For those who would argue that the Town needs to provide water access, I would suggest that we have Lou-Mac park with a fishing pier, a dingy dock, a kayak dock, the Town dock, and the little beach. We also have the Rec Park behind the Fire House that is underutilized, as well as Lupton Park, that needs repair. There’s also the problem of the Duck Ponds and the sinking streets.

It is my opinion that the Town government could find better ways to spend our money, rather than building more free dockage to compete with a core business while targeting that business for an additional tax. I always hear from the Town Commissioners that they are business friendly. So far, I’ve seen little proof of that.

Candy Bohmert
Oriental
2/12/12

Letter to the Editor

I would like to explain my vote supporting the exchange of property between Chris Fulcher and the Town of Oriental. The first formal offer from Mr. Fulcher was approximately 46 feet of water frontage on South Avenue adjacent to the Oriental Marina, and the partially finished dock structure located on that property. In exchange he wanted the terminus of South Avenue on Raccoon Creek and the remains of Avenue A which does not terminate at the waterfront. He owns or controls all property on both sides of each of these rights of way. The right of way on Avenue A is 30’ wide while the right of way on South Avenue is 60’ wide.

The 46 feet of water frontage was unacceptable to the board and we stated that we wanted a minimum of 55’. This number was made acceptable to me after discussing our needs with many members of the local boating community, including engineers and surveyors. The 55’ was accepted by Mr. Fulcher and agreed upon unanimously by the Town Board.

The right of way on South Avenue has a current CAMA permit for 80’ of dock and no dredging permit. That would be 80’ of dock from above the high water line. One could wade out for the first forty feet without worrying about getting ones bathing suit wet. Only two fairly shallow draft cruising boats could use the dock without rafting. We have applied for a CAMA permit to go out to the edge of the Channel that might be as far as 120’ (to be determined by CAMA). If we had that and a dredging permit and a permit to put in a bulkhead (and none of that would be certain) it would cost us somewhere around $100,000 to complete that work.

The partially completed dock on the offered property is or will be approximately 80’ long with a normal tide depth of 5-6’ at the bulkhead. It could instantly accommodate 4 normal cruising boats of types common to our waters. It could probably accommodate 6 if we allowed rafting on one side. When we add the two to three boats that can use the current town dock we could have as many as nine free spaces available. This amount of free dockage would put us in a category which I believe is only exceeded, on the East Coast ICW, by Elizabeth City which has 14.

This alone doesn’t sound like a bad trade for the South Avenue property but we would also receive an approximate 5000 sq feet of property behind the frontage that could possibly be used to construct public restrooms and a visitor center. A new town dock, visitor center and public restrooms have all been called for in surveys, long range visions, long range plans or in previous votes by the Town Board. In addition, since we would also be receiving the existing commercial sewer tap permit (about 12K of value), we could possibly put in a free town pump out. The availability of pump outs is a growing concern in our waterways. Except for the dock itself, none of the items mentioned in this paragraph would be allowed to be placed on our existing public rights of way. Some have suggested that we could buy the Wit’s End property and put up a visitor center and restrooms. That property is .19 acres and is currently listed for $239.000.

While I would have liked to have had a lot more, the reality is a lot more was not available. This is a good deal for the Town of Oriental which can help achieve many of our stated needs for the least money. I would be happy to reconsider if a well heeled benefactor would offer to buy The Garland Fulcher Seafood Establishment and donate it to the Town. I believe that is currently available for approximately 5.5 million dollars. I intend to make myself available before any public hearing to walk the site with any interested party. I have already done that with several skeptical residents who have ultimately seen the wisdom of this exchange.

Larry Summers
Commissioner
Town of Oriental
2/11/12

If anyone wants to see how a “quaint” waterfront can be quickly ruined, take a look at Southport, NC. The town allowed 2 square big box condos to be built on a promontory in the harbor. Most residents of Southport hate them, yet the town did not have any controls in place to prevent the construction. There may be a lesson here for our town leaders.

George Sechrist
Oriental
2/11/12

The Waterfront (Harbor) Area

Without a plan for what the general populace would like to see for future development near and along the harbor the worst prognostications stand a better than not chance of coming true. Development is inevitable; to attempt to stop it is unrealistic because that will not happen and is foolhardy at best. Without a destination in mind any road will take you there and “there” may not be what satisfies the majority or is desirable long term.

I would strongly encourage the commissioners, the planning board and the citizens to move forward determining what would be best for the long run. Give and get input and then act on it. One voice, because it is louder, should not be more persuasive than a quieter majority.

Accept the fact that commercial fishing in this area is becoming less viable as a money making profession. This is a fact and we cannot change that; it is bigger than Oriental. A business has to make money or it is only a hobby. With that said, development needs to contribute to the town’s ambiance while being comprised of good business decisions for those investing and gambling their assets.

We need to figure out what it is we want, be realistic about attaining that outcome and then move forward developing the road map to get us there. Failure to plan and then whining after the fact will only serve to entertain those who got what they wanted.

Respectfully,

Don Mau
Oriental
2/11/12

Dear Town Manager:

I am writing because for many years my wife and I have visited Oriental, then kept our boat here, and now are going to buy a house. I am a retired academic with some interest in land use issues.

The proposed Fulcher swap can give the Town some substantial benefits. But I hope the Town leaders will put conditions on Fulcher’s land use that will ensure against harming the waterfront at the water entrance to the Town.

He would get not only some property, but the means to extinguish a right-of-way. Thus, as I understand the sketch map on the Town Dock website, he winds up with a big chunk of land on that promontory that is a boater’s first look at the Town. He gets this by assembling his own parcels with what the Town would give.

We have cruised up and down the ICW for many years. The Town should take a long-range view and make sure that any use of that parcel in the future will be consistent with the overall interests of the Town. Certain kinds of commercial development could make the entire waterfront area look tacky and could be out of character with the rest of the Town’s aspect. We have seen this sort of thing in other communities. By contrast, some communities have taken an overall, long-range view of their valuable waterfront vista.

Thus, you might take the opportunity, if you do the swap, to make sure the combined parcels are zoned to prevent undesirable uses. You could ask for help from an environmental organization to draft a scenic easement, whereby Fulcher would deed back to the Town (or to an organization) the right to control development on this property, leaving him free to use it for his stated intended use. Towns that do not look to the potential future use of their prime assets wind up with irresponsible development.

I send these thoughts knowing that the Town leaders, Mr. Fulcher, and of course the folks who assemble at The Bean every morning, all share the same goal of keeping Oriental as the jewel that it is.

Sincerely,
Michael E. Tigar
2/10/12

I am shocked on so many different levels that it is hard to summarize.

Fulcher built a building without a permit and constructed a roof in excess of the allowable height. The Town graciously waives the fine after Fulcher removes the roof. The Town does not fine him for building without a permit nor does it require him to remove the building (extreme, but a legitmate remedy). In appreciation, he leaves the harbor gateway building roofless for a decade. If your facts are accruate, it is Fulcher who should seek to heal the relationship. It is not clear that he has offered to roof the building even now. Mayor Sage seems to be saying, if we give more than we receive, the Town might be so fortunate as to see Fulcher reward us with a roof in the next two-three years. I can hardly contain my appreciation.

Mayor Sage’s “logic”, as summarized in your article would be translated by me as “if someone cheats you (building without a permit and willfully violating the building code to boot), give them the better end of a financial transaction so maybe they will still like you.” This kind of logic works best when negotiating with someone else’s money/property; oh yes, it is not Mayor Sage’s property being offered.

I suggest the Town Commission stick to the basic facts. The total amount of land and water frontage being offered are patently inadequate. It does not pass a basic sniff test. If the Commmission wants to avoid conflict and the perception that they have not negotiated a fair deal, they should decline Fulcher’s offer and proceed with the Town’s own property. So-called intangibles should not be used to justify a bad deal. If the Town wants to negotiate, the methodology is pretty mathematical (i.e., the Town should receive roughly the same amount of land and waterfront that it is giving up less the value of Fulcher’s improvements); the “intangibles” only soften the edges.

Jim Privette
Retired real estate developer
Oriental
2/10/12

As a volunteer who helped clean up South Beach, I would like to see this new resource expanded. It seems that in the plot of this area shown on TownDock there is room for Chris Fulcher to deed much more land to our existing South Beach property.

With his land and our existing land we have a chance to complete the dockage on his piers, erect “facilities” and provide maneuvering room for transients docking. It seems that with our trading the road none of us have been missing, we could stipulate that no large structures be built that would look like a wall of condos or whatever.

Something will probably sometime be done with Chris Fulcher’s land. It is too huge to be ignored. We all want fishing to stay, but the state is making this way of living more and more difficult. This may be a way to have a tiny bit of control over what eventually will happen to that parcel of lovely Oriental Harbor.

Carol Small
Oriental
2/10/12

Thank you for your highly detailed yet concise summary of the Fulcher/Oriental land swap in today’s Town Dock. As a relative newcomer to the area I have never understood why there is this ghastly skeleton on Oriental’s harbor front, and no one has ever been able to explain it to me!

Hopefully the latest negotiations will result in a more aesthetically acceptable harbor front and a satisfactory solution for all parties.

Cathy Brugett
2/10/12

Board Members,

Thinking back to the building height controversy years ago, there was discussed the possibility of the building of a wall of Hatteras style condos across the outer edge of the harbor on the Fulcher Point Pride Seafood property.

In the Avenue A land swap this would create a contiguous property along the waterfront for Mr. Fulcher, making the possibility of a wall of condos more plausible. Since 301 Hodges Street is currently for sale our village charm is very rapidly changing.

Think of the impact on the village that this land swap may cause. Don’t let the village be changed by the rapid uncontrolled development that has happened to so many other coastal communities.

Bill Hines
2/10/12

Mayor Bill Sage, Commissioners,

As a resident and sailboater, I am looking forward to the expansion of public dock space. Traveling boaters bring not only tourist funds to our economy, but keep a dynamic feel to Oriental.

I am concerned about 2 elements of the proposed land swap.

First: The harbour/dock land is of much lesser area than the proposed road closure with public access to the river to be lost, unless a public (walking) right of way is retained with a small “park land” also to be retained at the riverfront. Additional harbour frontage should also be added to make this a fair trade for Oriental.

Second: Permission to create a massive, non-conforming, 3-story commercial property would permanently blight the Town Harbour. The massive scale of a structure with the current roof line and lack of conforming design elements would be a permanent change to the feel of the harbour. Not only design of the building must be considered, but noise ordinances and lighting ordinances for the entire town should be developed before new projects are permitted. An active commercial fishing fleet can be supported but the commercial structure needs to not destroy the positive visual appeal to tourists.

Perhaps a fair land swap can be executed now, but proper zoning must be in place before new permits are given.

Please be very wise with your power to change the appearance and value of our Oriental harbour.

Thank you,

Marshall E. Tyler
Oriental
2/10/12

I have been closely following the Fulcher Land Swap Proposal with great interest since I work in planning and zoning for an eastern North Carolina town. I know that it’s none of my business but I would like to present my take of some of the pros and cons of the offer being put on the table.

First, one must look at the dollar value of the offer and that seems to leave the Town of Oriental on the short end of the stick. The second consideration is what may be being put in front of the dollar value, is the attractiveness of the Town acquiring more waterfront for its Town Dock.

My thoughts consider the fact that the proposed 46.47 foot addition will only provide marginal room for utilization of the acquired dock in that the larger visiting boats will find the meager maneuvering room too intricate. These boaters have a way of advertising docking facilities to each other; and who wants negative advertising? Oriental has a lot going for it and you shouldn’t go second class at this point.

I have met Chris Fulcher one time, and he struck me as a pretty savvy businessman. Now is the time to match his savvy and negotiate a deal that serves both parties best interests. Never, well, hardly ever, take the first offer that is thrown on the table, and in this deal there appears to be much room for finding the middle ground.

Don’t go for a field goal when a touchdown is within reach.

Good luck guys.

Bruce Gammon
2/9/12

I was especially interested in Bill Sage’s comments about the town’s effort to repair its relationship with Chris Fulcher.

When I first arrived in Oriental back in 1999, I watched from the bridge as a Chris Fulcher-owned building burned.

Then Fulcher proceeded to construct an out-of-compliance building without all the proper permits. His reaction to the town enforcing its statutes was to leave the incomplete building as an eyesore on the waterfront.

Maybe, in the back rooms of Bill Sage’s administration, there have been town acts, or absence of acts, that harmed the relationship with Fulcher, but it’s ludicrous to say the town needs to effect a repair to this relationship. Even if there have been some errors made by the town in the past, that is no justification for making a terrible decision now.

Thanks for your ongoing coverage of this issue.

Doug Sligh
2/8/12

Stories About The Land Swap

Chris Fulcher Proposal To Town – January 31

Questions Arise On Fulcher Land Swap Proposal – February 7

Mayor Says Relationship With Fulcher A Benefit Of Land Swap – February 9

Town Board Accepts Fulcher Land Swap In Principle – February 12