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South Avenue Right Of Way, Legal Fight I

The South Avenue right-of-way saga started in the mid-1990’s when Lacy Henry, who owned a lot on the harbor next to the South Avenue right of way

A 2003 photo of former Town Manager Wyatt Cutler in front of the fence Lacy Henry erected in the 1990s.

and a house across the street, erected a chain link fence across South Avenue, a few dozen feet from the water’s edge.

That kept the public from being able to access the harbor. Henry had plans to build a marina off of his adjacent lot on the harbor to the south. He needed the right of way and its riparian rights to have enough space, and so, for a decade and a half, Henry tried to claim that that South Avenue right of way was his own personal property.

The Town sued, and the case languished for years. Then, after an unforced error by the Town’s attorney in a December 2007 hearing, a Superior Court judge ruled against the Town in early 2008.

By this time, Dave Cox was a Town Commissioner and had done a lot of research in to the history of South Avenue and the nearby lands. He was convinced the Town had a good shot of winning in court if it pressed on and hired a litigator other than the Town’s Attorney, Scott Davis.

Cox made the case his mission, and repeated – often – that the guiding issue was “public access to public trust waters.” If the Town lost that right-of-way at the water’s edge, he said then, what could protect the public’s access to Oriental’s other grassy street ends — rights-of-way — that meet the waters of the Neuse?

He pressed the Town to continue with the case, and appeal. In 2009, a NC Appeals Court sided with the Town of Oriental, ruling, in essence, that the right of way was long ago determined to be the public’s and it was not Lacy Henry’s to claim. By early 2010, the NC Supreme Court helped the Town clear the final legal hurdle to reclaiming that right of way.

Town’s Court Win Led To Plans For New Town Dock Off South Ave

Estimates are that the Town spent $25,000 in legal fees in re-establishing its right to that right of way that Lacy Henry tried to take.

After the Town won the suit, Lacy Henry’s chain link fence was pulled down, and years of overgrowth hacked and hauled away. Volunteers worked hours to clear the land near the water’s edge.

The scene at the South Avenue right of way in the winter of 2012.

In 2010 and 2011 plans were afoot to build a dock — of at least 100 feet — off of that South Avenue right-of-way. The idea was to offer a second Town Dock where visiting boaters could tie up for a day or two for free and spend some time in town. The money to build the dock – approximately $24,000 — was to come from the Town’s waterfront improvement fund which had more than $150,000 in it. The Town applied for a grant to defray the cost of dredging.

Then, last January, the Town Manager promoted the idea of a land swap with Chris Fulcher.

Swapping Land

Fulcher offered a nearby property on the harbor, next to the Oriental Marina’s fuel dock. In the water off the lot were creosoted pilings for a dock. On the land, Town officials and land swap proponents said, toilets could be built.

The rights of way the Town was proposing to give up in exchange — Avenue A and the end of South Avenue — amounted to more than twice as much land (13,000+ square feet.) The deal would give Fulcher control of all the land on the Neuse River from Wall Street to the breakwater and then half of the southern side of the harbor.

This proposal came just as Fulcher had acquired all of Lacy Henry’s land in that area, with Henry providing Fulcher about $900,000 in financing. An early press release from Mayor Bill Sage praised the Town Manager Bob Maxbauer “cultivating cordial relations among the Town, the Fulchers and the Henrys.” It did not elaborate on what role the Henry’s were to play in the deal.

Some in town embraced the land swap and the promise of public restrooms on land that would be owned “fee simple.” Some liked the swap because it was touted to give the town an instant second Town Dock – without incurring the $24,000 price tag of building one from scratch as would be the case at South Avenue.

Shown here, most of the 5,000 square foot lot owned by Chris Fulcher which the Town would get in the land swap. To the right is the property line with the Oriental Marina and, just outside of view at the far right, the back of the Toucan Grill restaurant.

On the other side, some opposed the land swap on the grounds the Town appeared to be giving up more than it was getting. Others argued against giving up a 75-foot waterfront for the shorter one where there’d be less room to maneuver. When the Town suggested it could reconfigure the Fulcher pilings or build a new dock, opponents noted that such a rebuilding would remove the cost savings the swap was supposed to provide.

Cox Questions Why New Lot Wouldn’t Be Dedicated

Dave Cox didn’t wade in to those arguments. But during the spring of 2012, he began asking if the Town Board planned to “dedicate” the lot it would get from Fulcher so that it would forever be a public access to the water. In that, he was rebuffed.

As the months went on, and the Board signaled it was going to finalize the contract with Fulcher, Cox kept asking about “dedicating” the lot. If the lot were not officially dedicated as a public place and public access to the water, Cox warned, a future Town Board could sell that land for whatever reason it chose. If that came to pass, Cox said, the public wouldn’t have any access to the water on that side of the harbor. It would have given up a dedicated right of way (at South Avenue and Avenue A) for something that couldn’t guarantee future water access.

Town Manager Bob Maxbauer at the June 13, 2012 meeting of the Parks and Recreation Committee. At this meeting he said it was “ludicrous” and “asinine” to suggest that the Town could one day sell the lot it would get from Chris Fulcher in the land swap. He did however, say he agreed with a Commissioner that the Town’s hands shouldn’t be tied. Dave Cox, who later sued the Town says such a lot should be dedicated to stay in the public trust.

At a Parks and Rec committee meeting on June 13, Town Manager Bob Maxbauer dismissed the concern raised by Cox and others, that a future Town Board could sell off that lot, or, as the Town Manager described it, ”liquidate at their whim just to put money in their coffers.”

“How ludicrous,” Maxbauer told the Parks and Recreation Committee, adding, “That’s an asinine statement for anyone to make.”

Yet just a few moments later, after Commissioner Barbara Venturi said she wouldn’t want to dedicate the land because, “I don’t see why you would ever want to tie the hands of the Town going forward,” Maxbauer concurred. “I don’t either,” he said.

Lawsuit Stems From Concern of Public Access To Waters

The Town officials’ reluctance to guarantee the land is the public’s for years to come was a turning point for Dave Cox, striking at the heart of his “public access to public trust waters” position.

Dave Cox

He spoke out against the land swap at the July 3 public hearing, after which the Board voted to give up Avenue A. Within 30 days of that vote, on August 2, Dave Cox sued, largely on the grounds that the rights-of-way are not negotiable.

A retired US Navy captain, and a dogged researcher but not an attorney, Cox is currently representing himself. A court date had been set for this coming August, but then a few weeks, ago, the Town’s legal team filed its motion to dismiss.

Where Oriental’s rights-of-way case goes next depends on the outcome of Monday’s motion to dismiss hearing. It is happening in the courtroom in the Bayboro courthouse, in a session that starts at 10a.

Earlier Stories About The Land Swap

Chris Fulcher Proposal To Town – January 31, 2012

Questions Arise On Fulcher Land Swap Proposal – February 7, 2012

Mayor Says Relationship With Fulcher A Benefit Of Land Swap – February 9, 2012

Town Board Accepts Fulcher Land Swap In Principle – February 12, 2012

Parks & Rec Committee Lists Questions About Land Swap – May 8, 2012

Land Swap Update: Town Board Puts Off Vote – May 8, 2012

A Map Of Town’s Proposed Harbor Area Land Swap – May 17, 2012

Oriental Town Board Votes 4-1 To Approve Land Swap – May 17, 2012

Town Board Approves Land Swap – On The Cover Photo – May 18, 2012

Petition Calls On Board To Step Away From Land Swap – June 22, 2012

The Land Swap And Lacy Henry – June 28, 2012

Land Swap By The Numbers – July 2, 2012

Town Board Gives Up Avenue A – July 4, 2012

Even Earlier Stories About The Town of Oriental V Lacey Henry Lawsuit

Town of Oriental Sues To Keep End of South Avenue – March 9, 2003 (First TownDock story on the subject.)

NC Supreme Court Gives Oriental Win In South Avenue Case – February 2, 2010

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Posted Saturday March 2, 2013 by Melinda Penkava