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n July 3, Oriental residents get their one formal public hearing to weigh in about the land swap on Oriental’s harbor. In that deal, the Town would get 55 feet of bulkheaded harbor front and a 4500 square foot piece of land from Chris Fulcher in exchange for giving up almost three times as much property and about 80 feet of harbor front.

South Avenue where it meets the Oriental harborfront, Thanksgiving 2011. The Town had to wage a long legal battle against Lacy Henry who claimed the land for himself, and finally won the court case in 2009. As the Town now proposes to abandon the land it won, Mr. Henry’s name has resurfaced.

Since January, those following the proposed land swap have spoken in terms of the Town working with property owner Chris Fulcher. But as the date approaches for the Town’s first official public hearing on abandoning the rights of way, another name has been coming up: Lacy Henry.

Lacy Henry, The Town of Oriental, And South Avenue

Lacy Henry was the focus of a court case in Oriental a few years ago. In the 1990’s he erected a chain link fence across the harbor end of South Avenue. For a decade and a half, Henry and his fence blocked the public’s access to land — and a harbor — that was the public’s right.

From the mid 1990’s until 2009, the public was unable to go to the harbor end of South Avenue because Lacy Henry had put up a chainlink fence across the land, claiming the land was his. A court eventually ruled that it was not.

Henry wanted that land and riparian rights off of South Avenue so that, combined with the lot and water rights he owned to the left of it, he could build a marina.

Lacy Henry’s CAMA permit application of a decade ago, for building a marina in the waters off of South Avenue and an adjacent lot he owned to the south of it. He needed the South Avenue right of way (upper half of the yellow bordered area) as well as its waters to make the plan fly and in the mid-1990’s fenced off the Town’s right of way from the public. The Town had to spend some $25,000 on a court case to win back what current Town leaders propose to abandon.

The Town sued Henry. Reclaiming that end of South Avenue on the harbor cost the taxpayers of Oriental $25,000. The Town won its case in the NC Court of Appeals in 2009.

Volunteers such as Stephanie Carperos and Jim Edwards with the Parks and Recreation Committee cleaned up the brush and debris at South Avenue’s harbor end in October 2010. This land, and the 75-80 feet of waterfront and riparian rights are what the Town proposes to abandon.

The case won, attention turned to planning a public dock for that property. Then, in January, the prospect of a land swap was first publicly raised.

Meanwhile, on January 5, Chris Fulcher bought all of Lacy Henry’s property near South Avenue. This includes the harbor front lot where Mr. Henry had once planned a marina in addition to the property (with the gray house) on the corner of South Avenue and Avenue A. In all, it was approximately 27,000 square feet of land. Based on the $2,100 tax “stamp” paid at the county courthouse, the transaction was $1,050,000

Avenue A whose 6,000 square feet Town officials want to abandon. At left, the lot with grey house at the corner of South Avenue and Avenue A which Lacy Henry sold to Chris Fulcher on January 5. Also included in the million dollar deal was the Neuse River lot in front of this and the harbor front lot next to the Town’s South Avenue Right of way.

Then, on January 13, eight days after that real estate transaction, Oriental’s Town Board held a closed door session where the Town Manager Bob Maxbauer displayed a sketch and pitched the idea of a land swap on the harbor.

In the ensuing months, the discussion has been about a swap between Chris Fulcher and the Town. However, a document at the Register of Deeds office shows that Chris Fulcher did not buy the property with a mortgage from a bank. Instead, Lacy Henry provided $900,000 in owner financing to Chris Fulcher. Lacy Henry is, as Oriental’s Town Manager put it recently, the lien holder.

This came up at the June 13 meeting of the Oriental Parks and Rec Committee which in early May had sent a list of questions to the Town Manager regarding the land swap.

Encroachment Claimed By Lacy Henry’s Attorneys

One particular aspect of the swap that Maxbauer spoke at length about was why he and other swap supporters thought it was to the Town’s advantage to give up Avenue A. Maxbauer says it would cost Oriental $75,000 if it kept that road.

The reason, he says, is something called “encroachment.” After the Town won its lawsuit with Lacy Henry over South Avenue in 2009, Maxbauer says, Henry’s attorneys contacted the Town to say that the Town was encroaching on the lot Henry owned at the corner of South Avenue and Avenue A. The encroachment: the asphalted curve at the corner of Henry’s (now Fulcher’s) land.

Manager: Town Has No Leg To Stand On

Maxbauer told the Parks and Rec Committee that if the Town kept Avenue A and South Avenue it would have “no recourse” but to fix that as Henry’s attorney demanded. Maxbauer put the price tag at $75,000. That’s for asphalting, moving a fire hydrant and a utility pole and moving the road bed toward the harbor.

Town Manager Bob Maxbauer in an April visit to the intersection of Avenue A and South Avenue. Accepting the encroachment claim of Lacy Henry’s attorneys, Maxbauer says the Town would have to spend $75,000 to move Avenue A to a point near where he is standing. He says the Town should just give up Avenue A – the road stretching in to the distance here. It amounts to 6,000 square feet.

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Perhaps anticipating that there would be some question about how moving a corner could cost $75,000, the Town Manager said that on the night of what he called, “the closing” (the public hearing on July 3), he would show graphics and overlays, “where each one of these colored things are switchable on and off on the projector.” He did not show that to the Parks and Rec Committee.

He did however share his view that the Town would have to spend that $75,000. He was adamant that the Town of Oriental “would not have a leg to stand on” to avoid fixing the “encroachment.”

Dave Cox: Curved Corner Is The Town’s

Former Town Commissioner Dave Cox says, to the contrary, that the town doesn’t have to pay to fix anything because it has the right of way at that corner.

Cox was instrumental in digging up research to help the Town win the South Avenue case in the courts three years ago. While the Town Manager claims the Town has no defense and would have to undo the “encroachment” Lacy Henry claimed at the corner, Dave Cox suggests there is a robust legal argument to be made in the Town’s favor.

Dave Cox says that the road from South Avenue on to Avenue A has made that curve so long that it is the Town’s “right of way by prescription.” That means, he says, that there’s no encroachment and the Town needn’t spend any money to change the intersection of the two streets. That takes away one major rationale for abandoning Avenue A.

Quoting from a book about North Carolina right-of-way law, Cox says that if a roadway has been used by the public for at least 20 years, the Town can claim to it as a road. It’s called “right of way by prescription.”

Dave Cox says that the corner of Avenue A and South Avenue has had that curve for “way longer than the requisite time” needed to become a right of way by prescription. The curved corner can be seen in a 1972 aerial photograph, making it at least 40 years old.

Also, Dave Cox says that the “corner has been like that at the very least since 1936 when John Bond first moved to town.” He says Bond, who passed away last fall, told him that when Cox was investigating the intersection for the court case a few years ago.

With right of way by prescription for that corner of Avenue A, that would mean that the Town is not on the hook for the encroachment that Lacy Henry’s attorneys tried to claim. For Dave Cox, the bottom line is that Oriental does not have to fix anything on that corner nor pay the property owner compensation.

Cox laid that out in a letter he sent to all Town Commissioners, the Mayor and the Town Manager. DaveCox Letter on ROW Prescription.pdf

If the Town doesn’t have to make those changes at that corner, that means it wouldn’t have to spend the $75,000 that the Town Manager estimated. That, in turn, would take away one of the main rationales touted by Town officials for abandoning Avenue A.

Who Then Would Demand The Town Re-Do The Corner?

Putting aside for the moment Dave Cox’s argument that right of way by prescription makes it all moot, another question arises as to why the Town would feel compelled to spend $75,000 on that corner.

It was Lacy Henry’s attorneys who claimed an encroachment by the Town, but Henry sold that corner lot to Chris Fulcher in January. Asked this spring if Fulcher was also claiming the Town had to fix the alleged encroachment at the corner down the road from his fish plant, Town Manager Bob Maxbauer said that Fulcher had not.

Bob Maxbauer said that again on June 13. “This was not used as leverage by Chris,” the Town Manager said referring to the land swap. As he continued in his remarks, he told the Parks and Rec Committee, “so I do not want it interpreted in any kind of way that there was any kind of extortion.” (No one at the meeting had.)

If Chris Fulcher is not demanding that the Town fix that corner, what drives the idea that it has to be fixed? The Town Manager’s comments on June 13 might shed some light.

Town Manager Bob Maxbauer at a June meeting of Oriental’s Parks and Recreation Committee. At right is Commissioner Larry Summers.

“Chris Fulcher came in to possession of this property with owner financing by Lacy Henry,” said Bob Maxbauer.

On the possibility of the Town not giving up Avenue A in the land swap, Maxbauer continued, “If we continue, if we went down the road of, no pun intended, down the road of development of this that it would be that that would be pursued to the fullest extent. But not necessarily by Chris Fulcher’s hand but by the … lien holder.”

The lien holder is Lacy Henry.

That connection gives Oriental resident Grace Evans pause. She remembers when Lacy Henry put a chainlink fence across South Avenue in the mid 1990’s so that he could combine the Town’s land with his adjacent land for his marina project. Grace Evans was the first to start compiling data for the Town’s ultimately successfully case to reclaim the South Avenue right of way.

When informed of the owner financing that Lacy Henry had provided to Chris Fulcher 8 days before the Town’s Manager and Board first discussed a land swap, Evans noted that Lacy Henry “has long wanted to put a marina on the South Avenue land.” “As lien holder,” Evans added, “this may enhance a collaboration to get that marina after all.”

The press release sent out by Oriental Town Hall on January 27 that ostensibly was about Chris Fulcher’s proposal to the Town stated, “We are very pleased to have received this proposal from Chris Fulcher. Much credit goes to Town Manager Bob Maxbauer for cultivating cordial relations among the Town, the Fulchers and the Henrys.” The press release did not explain how the Henrys were germane to the deal.

Regardless of that connection via the owner financing, if the Town does abandon the rights of way at South Avenue and Avenue A, the land will become Chris Fulcher’s and he could do with it what he wishes — keeping part of it, and or selling part of it.

There is a story that Sherrill Styron has told a number of times in recent years. Styron is a Town Commissioner — who supports the land swap — and owner of Garland Fulcher Seafood Company. A few years ago he sold most of his trawler fleet to Chris Fulcher. They signed the papers in an office, and once that deal was finalized, Styron recalls, shaking his head, Chris Fulcher turned to another piece of paper and in one signature, made $180,000 selling at least one trawler to someone else.

In that instance, a monetary value was placed on the objects being sold. In the land swap, Town leaders have steadfastly refused to assess the market value of the right-of-way land to be abandoned by Town, much less to assess what its value is to giving Mr. Fulcher a large swath of property to own — or sell — on the river and on the harbor.

Posted Thursday June 28, 2012 by Melinda Penkava