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Land Swap Lawsuit Goes To Court
Monday Hearing on Town's Motion To Dismiss Cox Suit
March 2, 2013
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n Monday March 4, the case of Cox v. Town of Oriental goes before a judge for the first time. Attorneys for the Town will be asking Superior Court Judge Ben Alford to dismiss the lawsuit that resident Dave Cox brought to stop the proposed land swap on Oriental’s harbor. The hearing will take place in the courthouse in Bayboro.

In his lawsuit, Cox claims that the Town Board had no right to give up Avenue A as it voted to do on July 3rd of last year.

dave cox ROW hrg July 3
Dave Cox at the Oriental Town Board’s July 3, 2012 meeting at which the Board voted to abandon the Avenue A right of way. In August Cox sued the Town over its proposed land swap with Chris Fulcher, saying rights of way are not the Town’s to sell, lease or exchange. The Town is asking a judge to dismiss the case on Monday.

The 6,000 square feet of Avenue A right of way leading to the Neuse River were part of a proposed land exchange with local businessman Chris Fulcher. According to the contract for the land swap, the Town would also be giving up the South Avenue right of way at the harbor (7,371 square feet and 75 feet of harborfront) In exchange, Fulcher would give the Town a lot of 5,000 square feet and 59 feet on the water, where there are pilings in place for a dock.

Cox: Rights Of Way Can’t Be Bartered or Sold
At the center of Dave Cox’s case is this view: that those 13,000 square feet of rights of way are not the Town’s to sell or barter.

south ave ducks
These are the Town’s riparian rights waters off of the South Avenue right of way at the harbor. The Town could build a dock in excess of 100 feet from the shore, and had planned to before the land swap was proposed. The Cox lawsuit seeking to stop the land swap claims that the Town can’t exchange rights of way.

Cox, a former Town Commissioner, says the Town doesn’t technically own the rights-of-way on any of its streets. Instead, Cox says, the rights of way were dedicated at the beginning of the last century to be for the public’s use. As such, the lands under the Avenue A and South Avenue rights of way — as with the Town’s streets — are something the Town maintains for the public’s use, as a trustee would. The Town can maintain them, says Cox, but the Town can’t enter in to an agreement to swap that land.

With this approach, Cox stands apart from others who opposed the land swap on the grounds that the Town negotiated poorly with Chris Fulcher and would get far less from the swap than Fulcher would. Dave Cox doesn’t take a position on the negotiating abilities of the Town’s officials. His take is that the rights-of-way aren’t negotiable, period.

That’s why, he says, he filed his lawsuit last August.

Town: Giving Up Avenue A Not An Exchange
A few weeks ago, Oriental’s Town Attorney, Scott Davis, and his partner in private practice, Clark Wright, who is also representing the Town, filed a motion to have Cox v. Town of Oriental dismissed. Wright told TownDock.net he could not comment on the case before the hearing, and referred TownDock instead to the motion.

Town Attorney Scott Davis and Town Manager Bob Maxbauer on July 3 in front of the schematic depicting the land swap the Town Manager negotiated. Depicted in yellow is the lot Chris Fulcher now owns (5,000 square feet) which would be swapped for 7,000 square feet of South Avenue right of way and the 6,000 square feet of Avenue A right of way, depicted in red. The Board that night voted to give away Avenue A before an appraisal of its value was done. Dave Cox’s lawsuit claims that the Town can’t swap or sell rights of way.

In that motion, Wright and Davis do not dwell on Cox’s assertion that rights of ways can’t be traded, leased or sold. Instead, according to their motion, the Town’s attorneys argue that giving up Avenue A’s right of way to Chris Fulcher was not part of an exchange. The Town Board’s July 3rd vote to abandon those 6,000 square feet was, they claim, an “independent act.”

While the Town’s position is that it wasn’t an exchange, the Town Board over the course of the winter and spring of 2012, went in to multiple closed door sessions with their attorney for the purpose of conferring about a negotiation. Further, the Board has voted in favor of a contract with Chris Fulcher that spells out terms of the town giving up rights of way in exchange for getting Fulcher’s 5,000 square foot lot.

Change on Exchange?
Before taking their vote on July 3 Commissioner Larry Summers, an unwavering supporter of the land swap, posed a question for the Town’s Attorney. “Is what we are doing an exchange of property,” Summers asked, “or a closure of a right of way?” Attorney Scott Davis answered that the deal “can fairly be viewed as an exchange.”

In this brief (45 seconds) audio from that meeting, the process is referred to as an exchange by Mayor Bill Sage, Commissioners Barbara Venturi and Larry Summers, and the Town’s attorney:

Commissioner Larry Summers at the July 3 meeting

Also, on July 3rd, just before voting to abandon Avenue A, the Board voted 3-2 to hire a real estate appraiser to determine the market value of the land that makes up the Avenue A and South Avenue rights of way as well as the value of the Fulcher lot for which they would be swapped. Getting that “full and fair consideration” is a prerequisite for going through with an exchange. The Town had not sought to learn the market value in the previous five months of negotiations.

Giving Up Avenue A Before Appraisal = Independent Act
Yet just moments after that July 3 vote to get all the land appraised, the Board voted 4-1 to give up Avenue A. There was puzzlement among a number of residents in the audience, but the Mayor did not allow anyone to speak. Commissioner Warren Johnson, the sole vote against it, gave voice to some of the concerns,“It just did not make sense,” said Johnson. “What have we just done?”

At the July 3, 2012 Town Board meeting, Commissioner Warren Johnson, center, was the only commissioner not to vote to abandon Avenue A. He is flanked here by Sherrill Styron and Michelle Bessette. Also voting for it were Larry Summers and Barbara Venturi.

In their motion to dismiss the Dave Cox lawsuit, the attorneys for the Town now point to that decision to abandon the right of way before the appraisal was in. The Town’s motion offers that as evidence that Avenue A was not part of an exchange but rather, “an independent act.”

Filing Suit Brings Challenge, Criticism, Familiar Turf
The Town’s Motion to Dismiss Dave Cox’s suit also challenges his right to sue the Town on this matter. It argues that Cox doesn’t have standing, noting that he doesn’t live adjacent to the land in question. The motion claims that Cox’s property, on Academy Street, “is located many blocks away.” Cox says his property is fewer than 800 feet from the rights of way.

Since he filed his lawsuit on August 2, Dave Cox has taken some heat for his action. He’s been accused of costing the Town money, $20,000 some say, to defend itself in the suit. He’s been blamed for delaying the creation of a second Town Dock.

Lost in the mix and the criticism is that the public likely wouldn’t have the South Avenue right of way and those 76 feet of harbor front and riparian rights if it hadn’t been for earlier efforts by Dave Cox. While this is his first lawsuit, it’s not the first time he’s been involved in the legalities of the Town’s right of way at South Avenue.

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Posted Saturday March 2, 2013 by Melinda Penkava

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