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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 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.

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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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

Posted Saturday March 2, 2013 by Melinda Penkava