Keeping Property Clean

Last Tuesday (Oct 27), the planning board heard complaints from citizens concerning the problem of construction debris. Our Code of General Ordinances, Chapter G - Health and Disease Protection, Article I, Section 8 - Debris from New Construction, provides that "All refuse, lumber and debris remaining both as a result of the repair of any buildings, or of the erection and completion of any new buildings, shall be removed by the property owner within ten (10) days from the completion of the aforesaid work."

The problem is, some of the "aforesaid work" is accomplished over a protracted period of time. If the work crew doesn't keep the site clean it may become not only unsightly but also a health hazard. This circumstance presently exists at a number of sites in town.

At the next Town Board meeting, I intend to introduce an amendment to our general ordinances requiring accumulated refuse, lumber and debris to be removed within ten days of creation and accumulation of the debris.

Economic Development

Economic development isn't the same as business development, though many officials conflate the two.

How to tell the difference? Business development tries to increase market share - in other words, to get a bigger slice of the pie. Economic development seeks to bake a bigger pie.

How can Oriental and Pamlico County bake a bigger pie? About half a dozen ideas come to mind. I'd be happy to share them with anyone who asks.

Campaign Heating Up

Oriental's campaign for political office is heating up.

At least six of my campaign signs have disappeared. This follows an earlier incident when one of my signs was removed from its place along Church street and later found at the entrance to Town Hall. Two anonymous calls complained that my sign was on town property. Of course, I didn't put it there. My signs are only at places where the owner requests them.

The most recent disappearance occurred this morning (Oct 23). The sign was on the property when the owner went to bed at 2:00 a.m. and had disappeared by the time he got up at 7:00.

It isn't unusual in hotly contested campaigns for signs to be stolen. Usually this is done by supporters of other candidates concerned that their candidate may not be doing well. An alternative explanation is that the thieves merely wanted a souvenir. If they had just asked, I would have been glad to provide a souvenir sign after the election.

Another possibility is that the signs are stolen by thieves concerned at my efforts to enlarge the town's police force.

Wrapping Things Up

The current Town Board has one more scheduled session before the new board is sworn in. The present board has a number of issues previously discussed that I will propose be addressed at this final meeting. Here is a partial list:

1. Act on an earlier proposal for the town to assume maintenance responsibility for the portion of North Street within town limits. This will allow us to take traffic control measures such as moving the center line stripe, establishing parking and no parking zones, and stop signs as the Town Board determines, rather than having to convince DOT. The street is in good repair, it would increase our Powell Bill funds from the state, and should generally enhance our flexibility;

2. Petition DOT for the town to take over responsibility for that portion of White Farm road that is bordered on each side by Oriental. The town should have included that section of White Farm Road in its annexation of adjacent property. This would give us control over speed limits, signage, etc. and allow us to eliminate what many residents of the area see as a hazardous situation;

3. Replace the temporary rumble strips at the north end of Midyette Street with permanent rumble strips of asphalt. Our Public Works Department knows how to make such strips. Some nearby residents report the strips seem to be doing some good. The temporary strips can be relocated to Ragan Road, where residents report cars ignore the present speed limit;

4. Reduce the Speed Limit on Midyette Street to 15 or 20 miles an hour. Residents at both ends of the street report to me that trucks pulling boats to the launch ramp at 25 mph (or greater) create a hazardous situation. In one recent incident with a bicycle, witnesses believe the truck was not exceeding the posted speed limit, but the trailer still jacknifed. I hope we can act on this;

5. At the last Town Board meeting, we discussed the possibility of removing the existing limit on location of chickens kept for personal use. I plan to introduce a motion to do that;

6. We will be required in early December to submit a report on our CAMA land use plan. This board needs to lay the foundation for that report, especially if we propose any changes.

Closed Sessions

Most meetings of the Town Board are required to be held in public. North Carolina General Statutes recognize a handful of circumstances (lawyer-client privilege, negotiating a real estate deal, etc.) where meetings may be held in closed session, and some (personnel matters) that must be held in closed session. In all cases, before going into closed session, the board must declare the reason. Minutes must be kept of closed sessions and the minutes must be opened when the matter is no longer necessary to remain closed.

I have asked that at least the closed session minutes of the past two years be reviewed, and that we take action at the next meeting of the Town Board to open all possible minutes. I would like to go as far back as possible, into the records of previous boards as well, to correct this oversight.

I have found that we were not always careful to confine our closed session discussion to the reason declared. We need to be more careful in the future. As a practical matter, I think no harm was done, though we should be somewhat embarrassed. Still, we need to make most of the minutes public, except for discussions of personnel and a few other matters, which must remain closed.

We need to be scrupulous about complying with the open meetings act.

Chickens

Oriental's animal control ordinance allows its citizens to keep chickens for their own use - as long as they are kept at least 300 feet from the nearest dwelling. It is pretty clear this is a backdoor way of prohibiting chickens.

We had an inconclusive discussion on chickens at the last Town Board meeting. At the next meeting, I hope we agree to remove the 300 foot restriction.

I like being around chickens. Having grown up on farms, I have fond memories of feeding chickens, gathering eggs and less fond memories of keeping chicken coops clean. There is a national movement underway to promote urban chickens, part of an even larger effort to promote local food growing. I see no reason Oriental shouldn't be a part of this effort.

A Good Audit

I'm not a trained accountant, but I once served as Chief Financial Officer of a private equity fund and as government contracts officer of two different companies. I have been through audits before, and was beginning to lose confidence in the vigor of the town's recent audits.

Last summer, when I learned we would be able to hire a new auditor to review the town's accounts and procedures for the fiscal year that just ended, I called for a special board meeting to change auditors. We don't yet have the written results, but preliminary indications are that our new auditor is doing a fine job. He has already uncovered a number of areas where the town's procedures did not meet the requirements of NC general statutes, and other areas where he has suggested improvements.

A good audit is not one that takes a cursory look at the books and declares "you have no serious deficiencies." Rather it is one that takes a thorough, probing look and makes concrete suggestions. We are undergoing a good audit. I look forward to the written report.

Public Safety

At the 13 October special meeting of the Town Board (called by me and Candy Bohmert), the Board of Commissioners directed the Town Manager to initiate the hire of two part time deputy policemen and to begin efforts to establish a neighborhood watch program for Oriental.

It was clear from the public comments at the meeting that most attendees shared my view that we have tried a one-man police force and it doesn't work. I asked for the special meeting because I thought the matter too urgent to wait for the next regular meeting. I hope we will be ready to move on the first part-time hire by October 23.

The Board recognized that part time hires will be only a temporary solution and that we should consider at least one full-time hire as a possible longer-term measure. The procedure to hire another full time policemen can be expected to take at least ten to twelve weeks. We expect the newly elected board to take this up in December.

Oriental Long Range Plan

On October 6, the Board of Commissioners approved the Long Range Plan developed over the past three years by the Long Range Planning Committee. By this action, the plan was turned over to Oriental's Planning Board to be incorporated in the Comprehensive Plan for Oriental, now being drafted.

As a member of that committee, I am proud that its work proceeded with particular thoroughness and care. Key contributions were made by Ben Hollowell, the Chair, who brought his broad familiarity with Oriental's history; Barbara Venturi, who brought her expertise in database design; and Dee Sage, who prodded, organized, drafted, and kept the whole project on track. Among the other members, important contributions were made by Teri Reid, Christy Foster, and Jennifer Roe.

The text is on the town's web site at:

http://www.townoforiental.com/index.asp?Type=B_BASIC&SEC={C3BC4B43-0B27-4656-9A9A-46D5E9C0DEFB}

Pamlico County Comprehensive Transportation Plan

At the October Town Board meeting, the board approved a resolution adopting the Pamlico County Comprehensive Transportation Plan (CTP) for Oriental. This plan, which was prepared by NCDOT with cooperation of the Down East Rural Transportation Organization (DERPO), establishes transportation requirements looking ahead thirty years.

The plan is on line at:
http://www.townoforiental.com/index.asp?Type=B_PR&SEC={4B6C2CFF-3843-41DE-829A-DB9FF719B4DF}&DE={18C9014F-9283-4C2D-9EFF-02AF4E6FBB8B}

For the past two years, I represented Oriental on the Pamlico County Steering Committee for the CTP. The plan includes a requirement for a bicycle path from Dolphin Point to Oriental Village, a requirement for sidewalks along highway 55 beyond town limits, and a requirement for a public transportation routes. We had asked for all of these.

We successfully opposed inclusion of four lanes from Bayboro to Oriental and a proposed bridge from Cherry Point to Minnesott.

Next step: approval by county commissioners at their November meeting.

After county commissioners adopt the CTP, Oriental needs to develop its own CTP, building on the 1988 thoroughfare plan and work done to date on the Duck Pond Plan and the Whittaker Creek Greenway Project for a bicycle and pedestrian path connecting Dolphin Point with Oriental Village.

Oriental Police Department

Last spring, Oriental's police deputy unexpectedly resigned. The town commissioners decided to try a one-person police department. That trial has not worked out as well as the commissioners had hoped. Providing police protection for Oriental appears too big a job for one man.

Sheriff Sawyer has been extremely helpful in providing back up to our only policeman, but response time is a problem because Sheriff's Deputies have much further to travel than our local policeman. In recent weeks the County Sheriff has responded more frequently to incidents in Oriental than has our own Chief. Last Wednesday morning, thieves stripped an SUV parked at the corner of Oriental's two main streets. The County Sheriff responded to that incident, as well.

I believe we urgently need to recruit a well-qualified part-time policeman as an interim measure, and review our long range options, which may include a full-time deputy. The Town Board will have a special meeting at 5:00 October 13 to address some of these issues.

We should put public safety first.

SOUTH AVENUE

The first fight I took up after being elected Town Commissioner was to defend the town's ownership of the South Avenue right of way all the way to the Harbor. I had no quarrel with the other board members or the previous board - all of them thought the right of way belonged to the town. But the town attorney seemed to believe we had a losing case. I didn't. I had read David Lawrence's book on NC right of way law and believed we had a winning case. Our attorney proceeded to lose the case at the hearing on the motion for summary judgment. The issue became whether to hire a professional litigator and pursue an appeal. I pressed for that, and the other board members supported the decision to hire Mr. Stevenson Weeks to handle the appeal. He won a unanimous decision by the NC Court of Appeals, as reported below. Now we await a decision by the NC Supreme Court whether they will review the case. The Court of Appeals decision appears to apply to all of the town's street ends.

September 21, 2009 Update

On the 7th of July, 2009, the North Carolina Court of Appeals reversed the decision of the Pamlico County Superior Court in the case of TOWN OF ORIENTAL , plaintiff v. LACY HENRY and wife, JUDY B. HENRY, Defendants. "The Town contends," the Court said, "the trial court erred in granting summary judgment in favor of the Henrys and in not granting summary judgment in favor of the town. We agree." The court concluded its unanimous opinion as follows: "Accordingly, as there were no genuine issues of material fact as to whether the Town was the owner of the South Avenue terminus, the Town was entitled to judgment as a matter of law. We hold that the trial court erred in granting summary judgment in favor of the Henrys and in failing to grant summary judgment in favor of the Town. We thus reverse and remand this matter to the Pamlico County Superior Court with instructions to enter an order consistent with this opinion."

The Henrys petitioned the Court of Appeals for a rehearing, as was their right. The Court of Appeals denied the petition, whereupon the Henrys petitioned the North Carolina Supreme Court to grant a discretionary review of the Court of Appeals decision. That is where the matter stands.

In May, 2008, PamlicoInk published an interview with Mr. Lacy Henry. In response, I wrote the following letter to the editor of The Pamlico News:

May 21, 2008

Dear Editor:

In a recent interview, Mr. Lacy Henry seems puzzled that the Town of Oriental is suing over his claim to own the portion of South Avenue that he leased from the town for many years. “I am not sure what is driving the town’s actions,” he says.

There is no mystery here. The Board of Commissioners has a duty to protect the town’s assets. South Avenue has been a public right of way for at least ninety years and arguably for a hundred and ten. It extends all the way to Raccoon Creek. We would be remiss if we didn’t defend the town’s right of way. It provides public access to public waters.

Mr. Henry has a lot to say about this. Not all of it is accurate. At a hearing last New Year’s Eve in Bayboro, he told Judge Crow that he and his father before him paid taxes on the terminus of South Avenue since the early 1950’s. Public records show that is not the case. They have never paid taxes on the disputed parcel.

In the interview, Mr. Henry recalls with nostalgia his family’s operation of a marine railway at the site. Speaking of the railway’s remaining track and winch, he says “if you move it, you will never get it back.” He also emphasizes that he holds a CAMA permit for an eight slip marina at the site, combining the town’s South Avenue street end with the adjacent waterfront lot that he owns. He doesn’t mention that the CAMA permit allows him to dump four feet of fill and build a bulkhead and piers right where the old tracks and winch are located. It isn’t clear how this preserves the marine railway.

From the town’s viewpoint, we know that if we lose control over the end of South Avenue, we will never get it back. Future generations will never be able to use South Avenue for access to public waters if Mr. Henry prevails. Whether Mr. Henry’s planned marina is a good idea or whether it ever comes to pass is beside the point. Mr. Henry’s “successors and assigns” would be able to do whatever they want with the land whether or not it was a benefit to the citizens of Oriental.

If the street end remains in the town’s hands, we can build another town dock, serving as a powerful draw to the 14,000 boats per year passing up and down the ICW only two miles away. This would bring customers for all of the town’s businesses and a lot of goodwill for future business. Cruisers attracted by free docking spend money and come back. If Mr. Henry wants to preserve a piece of the town’s past and attract visitors, he can certainly find a way to pool resources and work together with the town.

The struggle between the town and Mr. Henry isn’t about the past – it’s about the future.

David Cox

Oriental Town Commissioner

Animal Control

One of the first issues the present town board addressed in 2008 was the question of animal control. Many residents want a leash law. Many others were attracted to Oriental precisely because we don't have one. The board was in complete agreement that we don't want vicious or threatening dogs at large. There was great disagreement on issues of exact rules and enforcement. Those who wanted a leash law were not happy with the modification we made in 2008. Earlier this year, Commissioner Kellam proposed a draft ordinance that I thought was a big improvement over the existing one, but still raised questions. I voted against referring the issue to a committee of citizens, but agreed to go over the proposed language with Commissioner Kellam. The following is a letter I sent to a resident on the subject.

September 20, 2009

Dear Resident:

I want to let you know where I stand on the animal control ordinance.

Local newspapers, including the Pamlico News, were in error when they reported I voted against the draft animal control ordinance.

The only vote taken was whether to refer the draft to a committee of citizens, equally divided between proponents and opponents of a leash law. I oppose that procedure just as I opposed the stakeholder's committee three years ago and as I opposed a noise ordinance committee. That would be a cop-out. The town commissioners were elected to take on such tough issues.

I also think that creating an ad-hoc committee on the fly (that is, in the course of a meeting without advance thought) is prone to all manner of misunderstandings as to terms of reference, the task, the expected time frame, etc.

As for Kathy Kellam's draft, I think it is a considerable improvement in many respects over our present ordinance. Still, there are significant issues raised by the draft, many of which she pointed out during the meeting. I have questions about some of the policy issues that I would like to resolve. In the end, whether I support the draft or some modification of it, will depend on answers to several practical questions.

I think there is support for more effective animal control measures. Whether this requires clarification of our existing ordinance, better enforcement of its provisions, more public involvement in timely reporting and complaints, or a combination of the above, I don't know. whether the provisions in Kathy's draft are enforceable concerning keeping cats under restraint, whether "voice command" is a viable concept even with dogs, are reasonable questions in my mind.

I don't agree with the County Compass headline that the draft is "dead on arrival." I certainly didn't vote against any specific changes, just against referring it to a committee. Especially after the fuss over a noise ordinance committee, I want to make it clear I don't support such an approach.

What I do support is for the Town Board to conduct public hearings or even formal investigations into proposed ordinances. While looking through NC General Statutes recently on another issue, I came across the provision empowering town boards to conduct investigations,even to the point of issuing subpoenas to witnesses. I think this is an excellent way to receive input from the public and from experts.

Another suggestion I have heard is to hold an "advisory referendum" during the forthcoming election. That suggestion came from a lifetime northerner. I don't like referenda, because the ones I have seen invariably oversimplify the issue. A question, for example: "Do you favor a leash law for Oriental" or even "do you favor enhanced animal control measures for Oriental" wouldn't tell us much. Details matter.

I have had a number of discussions with the town manager concerning our existing ordinance. When we passed it, none of the commissioners wanted to allow dangerous, vicious or threatening dogs to remain at large. Such animals are clearly covered by state law, and the county animal control officer has jurisdiction to respond to complaints. Our ordinance also addresses nuisance animals. I think we need to clarify the nuisance category. More importantly, we have few town resources for animal control. If we wish to rely on the county for support in that area, we need to conclude an interlocal agreement or memorandum of understanding spelling out the details of procedure. I have had a preliminary discussion with the County Manager about this, and he seems receptive to the idea, though a bit concerned about whether the county has sufficient resources.

I have agreed to sit down with Kathy Kellam to address specific issues and concerns and how best to address them.

David Cox

Oriental Water Fund

An Oriental resident recently expressed concerns about the Town Commissioners' increase of the basic water rate by one dollar per month.

While it is true that any increase in fees, no matter how small, adds to the burden of citizens at a time of economic stress, a number of factors make this measure necessary:

1. Oriental has been losing money on water due to higher prices for treatment chemicals, more stringent testing requirements and salary increases over the past eight years;
2. Oriental's Water Fund is an enterprise fund - required by state law to be self-supporting;
3. The Water Fund reimburses the general fund (general tax revenue) for administrative costs - principally salaries of town staff for time spent managing the water system;
4. The administrative cost was last calculated in 2001 - since that time costs have escalated;
5. For the past eight years,the General Fund has charged $48,000 per year, despite the fact that actual costs have increased to nearly $82,000 since 2001;
6. Since 2001, the gap between actual cost and the reimbursed cost totals nearly $150,000;
7. The commissioners were reluctant to burden ratepayers this year by increasing water rates to cover the entire cost, because of the poor state of the economy;
8. For the coming fiscal year, commissioners increased reimbursement from the water fund to the general fund from $48,000 to $72,000, still about $10,000 short of actual costs;
9. The plan is to recover the entire cost in next year's budget.

The bottom line is that Oriental's taxpayers have been subsidizing the water system for the past eight years. We have to stop this practice.

David Cox

Noise Ordinance

One of the most controversial issues of the past two years was the noise ordinance. I fought for a change to our existing ordinance, to establish a reasonable, objective, measurable standard. Before the board made the changes, any noise that "annoys, disturbs..." or affects the peace of persons within the limits of the town was a violation. The ordinance also provided that any violation would be a misdemeanor (criminal violation) with a fine of up to $500 per occurrence. I introduced the amendment finally adopted, which set a measurable standard attempting to balance the interests of residents to enjoy the use of their homes with that of performance venues. It also changed the penalty to a civil fine except in egregious cases of willful violation. I strongly believe that any ordinance should establish a clear, objective standard so that a person or business can know whether it is in violation and take steps to avoid breaking the rule without the heavy hand of the law. I am pleased we were able to do that. Below is a letter I sent to Pamlico News during the controversy.

NOISE AND OTHER DISTURBANCES

by David Cox

(Published in Pamlico News, December 31, 2008, p. 4)

The surprising thing about letters printed in Pamlico News concerning Oriental’s noise ordinance, as well as e-mails received at Town Hall from as far away as Raleigh, is that most writers believe we want to abolish outdoor amplified music. That isn’t true.

Many of the letters describe the problem as a private dispute between the Tiki Bar and two local residents. This also isn’t true. More than a dozen residents have complained to either the Chief of Police or to one or more town commissioners that the enjoyment of their homes has been disturbed by loud musical performances at five different venues. Some of the complainants live nearly half a mile from the performance sites. No complaining resident ever requested prohibiting outdoor music. They do want to know why the music has to be so loud, why it has to be so frequent and why it has to last so late. None of the music supporters has provided answers to these questions.

How loud is the music? Last August 2 one of our commissioners measured the dB level on Hodges in front of The Bean, 150 feet from a band at the Tiki Bar. The level was 83 dB. From that, one can calculate the sound level at the bandstand as 120 to 130 dB. That’s between the sound level of a jackhammer and that of a machine gun. The National Institute for Occupational Safety and Health (NIOSH) recommends limiting exposure to noise of 120 dB to nine seconds, and to 130 dB to less than one second. So not only does such a sound level annoy the neighbors, it may be dangerous to the hearing of patrons.

Using a simple physical rule for sound (the inverse square rule), one can calculate that a sound level of 83 dB on Hodges street in front of The Bean would diminish to about 71 – 73 dB at the back deck of South Water Street residences. For comparison, that’s louder than a vacuum cleaner, clacking typewriter or piano playing in your house. But you can’t turn it off. Many people would find that annoying if they are trying to sleep in the next room, read a book, converse with a dinner guest or listen to their own choice of music – in other words, to enjoy the use of their home.

A problem with our current noise ordinance is that we set no measurable, objective standard. It is a violation of our ordinance to make any noise which, “because of its volume level, duration and character annoys, disturbs, injures or endangers the comfort, health, peace, or safety of reasonable persons of ordinary sensibilities within the limits of the Town.” This makes it hard for business owners, musical performers, nearby residents or the Chief of Police to know when enforcement action is necessary.

Another problem is that the ordinance provides no standards for issuing noise permits. It establishes no limits on times, sound level, number or frequency of events. It provides no criteria for approval or disapproval of a requested permit.

Recognizing our ordinance may require improvement, since January 2008, the Town Board has examined possible options. We have researched and reviewed ordinances in other communities, including Chapel Hill, Carolina Beach, Myrtle Beach, Charlotte, and elsewhere. None of these ordinances is a perfect fit, because none has zoning patterns quite like ours. But they provide a good starting point. A typical standard in other communities is a sound level of 65 dB measured at least 100 feet from the point of origin, and beyond the edge of the emitting property. For a measurement on Hodges Street for a performance at the Tiki Bar, that corresponds to about 105 dB on the bandstand. That is about the same sound level as a low jet flyover or a snowmobile; louder than a helicopter, but not as loud as a chain saw.

A thought for Oriental residents to bear in mind is that our Growth Management Ordinance allows night clubs and bars anywhere in our two mixed use districts. Imagine a Tiki Bar or similar venue at Sea Harbor, both sides of Whittaker Creek, Neuse River Suites, the harbor district, any lot along Broad Street or lower Midyette Street. We make rules not only for what exists at present, but also for what might exist in the future.

A hopeful sign for resolving the issue is that, of twenty-nine letter writers supporting outdoor music, fifteen offered positive, helpful suggestions. Thirteen suggested various time limits and eight suggested regulating the sound level. Both approaches enjoy some support within the Town Board. As we review this controversy, the Town Board welcomes public inputs on issues of sound level, time, number and frequency of performances, exceptions and so forth. We may wish to hold special meetings of the Board to collect information, both verbally and in writing, from everyone having an interest in the outcome.

As often in policy conflicts, this is not a case of good against evil. Bringing tourist dollars to town is good. Enjoying one's home is good. We have a conflict between good things, not between good and evil. Demonizing opponents doesn’t help. We have an excellent Town Board. With helpful, positive input from our citizens, we will be able to resolve these issues to everyone’s benefit.