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February 2, 2010
With one simple word, North Carolina’s Supreme Court has brought the Town of Oriental an ultimate victory in its long-running South Avenue lawsuit.The word is “denied” and it’s what the high court has done to an appeal by Lacy Henry and his wife, who tried to claim the public land at the end of South Avenue in order to build a marina.
This land is your land. (And the water, too.) Dave Cox, who as a Town Commissioner, led the fight for Oriental to keep harborfront land at the end of South Avenue that Lacy Henry was trying to claim as his own.The state’s supreme court’s ruling — issued last week and on-line yesterday — cements an earlier Appeal Court decision in the town’s favor. Namely, that if the rest of the street has been maintained by the town and has been dedicated as a town street, then the unpaved end of the street – up to the water front – also comes under the town’s jurisdiction and cannot be claimed by adjacent property owners.
The fence that started it all. In the mid-1990’s Lacy Henry had this fence erected between the paved and unpaved sections of South Avenue. He tried to claim the valuable waterfront land — about 60 feet wide on Oriental’s Harbor — as his own and caused the town to spend tens of thousands of dollars to prove the land was not his.The end of South Avenue is a 60-foot wide stretch of grass and overgrown brush that extends a few dozen feet from the asphalt to the edge of the harbor. With that waterfront come riparian rights that allow for building in to the harbor.Dave Cox, the former Town Commissioner who persistently pressed the town to fight for its land, was quick with an answer Monday when asked what he’d like to see at the end of South Avenue.
“An additional town dock,” he says. “I believe we can put a 100-foot dock at the end of the right of way.” Cox says he sees that as the centerpiece of expanded facilities at the harbor to host transient boats. A combination of federal boating infrastructure grants and matching funds from the town’s occupancy tax kitty could finance the new town dock, he says.
As a visit to the site will show, a lot of cleanup and dredging would have to take place first.
In the more near future, Cox is looking forward to a fence coming down. A fence that had become a symbol of the town’s land being taken.
A Fencing Ploy
The town’s conflict with Lacy Henry began in the mid-1990’s, when he had a fence erected that blocked the public from reaching the waterfront from the rest of South Avenue. A few years later he sought state permits to build a marina there and on an adjacent lot he owns. Having the 60 feet of town property would have allowed him to develop a bigger marina than if he developed just his own adjacent parcel.The Town of Oriental reacted by filing a lawsuit, but the case lingered on the back burner for several years. (One source of court delays was the bankruptcy proceedings Henry was going through.)
The remnants of the Henry family’s marine railroad from the decades when the family ran a boatyard at the end of South Avenue and rented the land from the Town of Oriental. It was that same land — and water rights — that Lacy Henry would later claim that he owned.On New Year’s Eve, 2007, attorneys for both sides presented arguments before Superior Court Judge Ken Crow in Bayboro. Henry’s attorney claimed that Henry paid taxes for the end of South Avenue. While several Oriental officials knew that records showed otherwise, Oriental’s attorney, Scott Davis did not contest that claim in court. In the spring of 2008, Judge Crow sided with Henry and granted him a summary judgment.
A Question Of How To Proceed
In the face of that blow, Oriental’s Town Board first agreed to arbitration to settle the case, and when that failed, the board debated whether to proceed with an appeal.Much of the Town Board’s discussion occurred in closed door sessions (the minutes for which have not yet been made public) but in open session, some commissioners expressed concern about the cost to the town of the appeal and potential jury trial. On more than one occasion, it was mentioned that Lacy Henry had enjoyed a reversal of fortune from the days of bankruptcy and reportedly had deep pockets with which to fund his legal battle.
The land in question is on the left hand side of this photo. Former town commissioner Dave Cox walks the line between the end of South Water Street and property on the right, owned by Chris Fulcher.David Cox said there was discussion among his fellow commissioners about “how deep were we willing to dig in to the public treasury to protect a public asset.” He says he argued that the town should spend the money because otherwise, other public assets would then be “very vulnerable.”
It was not only South Avenue that was at stake, Cox said at the time, but the principle of giving the public access to the water at the ends of Oriental’s other streets.
A Win On Appeal For The Town
For its appeal, Oriental hired an outside attorney, litigation lawyer Stevenson Weeks. The payoff came in the summer of 2009 when a three-judge panel of the NC Court of Appeals reversed Judge Crow’s decision. Central to the appellate ruling was the concept of towns maintaining control over streets and rights of ways, in this case, to the unpaved end of South Avenue.
Some cleanup lies ahead for the waterfront end of South Avenue on Oriental’s harbor.Though a key victory for the town, it was not yet over until Lacy Henry exhausted his right to appeal. After the Court of Appeals turned him down, he asked, last fall, that the North Carolina Supreme Court to take up his case. For a few months, the case hung in the balance and then, in recent days, the high court released its decision to deny Henry a hearing.
When to De-Fence?
Still, that fence across South Avenue can’t come down until one more box is checked off: the original Superior Court judge in the case, Ken Crow, will have 10 days in which to sign off on the original Appeals court ruling that sided with Oriental.
Along with the end of South Avenue, the high court decision also confirms Oriental’s claim to riparian rights on the harbor. That could allow a second Town Dock, 100 feet long, to extend in to the water. Such a dock would be parallel to the dock at right, recently reinforced by adjacent property owner, Chris Fulcher.Oriental Town Manager Randy Cahoon on Monday said that he expects the Town Board will talk at their meeting Tuesday night about how soon after the judge’s signature hits the paper, that the town can tear down the fence that sparked this fight a decade and a half ago.
Another matter for Oriental’s Town Board: making public the minutes of their closed door sessions at which the South Avenue lawsuit was discussed. Some commissioners on the last Town Board hesitated to do so while the case might still be alive. Asked if the minutes could now be released, Town Manager Cahoon said, “Yes they can. Every last one of them.”