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2. READ AWARE’S BRIEF BELOW THEN LINK TO OUR DETAILED CASE
   

3. AUGUST 2008
   

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5. Nine months can deliver a human being into this world, but over nine months ago New Bern AWARE asked the City of New Bern to deliver life to its city by retaining rights and ownership of a waterfront which historically has belonged to its citizens.  This nation makes strong arguments for Right to Life issues of those who haven’t come into the world on their own yet.  But what about the right to life for those citizens walking around independently, standing in their own public squares and walkways.  When does a city or, for that mater, the State of North Carolina stand up for citizens of New Bern and public visitors to one of the State’s most historical towns? 
   

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7. How can rights so clearly belonging to a public be aborted by city officials and state leaders?  How can representatives of North Carolina dare to strip public land from citizens for the privatization of a public waterfront and the unquestionable profiteering of investors whose obligated operation of a public marina gives them the idea that they can sell that marina for millions of dollars?  Nine months ago New Bern Aware began its fight to protect New Bern’s Marina.  Over nine months later New Bern’s elected officials still will not stand up and do the right thing and protect your rights, and now State officials are joining them in misguided interpretation of public rights and private responsibility.  Here’s a brief history of the past nine months:
   

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9. •Over nine months ago New Bern AWARE informed the City of New Bern that the Soleil Group (owner of New Bern’s Sheraton Grand) was attempting to sell slips at the New Bern Marina and that the City, who owns the riparian rights to the Marina, should stand up and protect its property.
   

10. •Nine months ago the Mayor informed the founders of New Bern AWARE that he would not bow to pressure from and unruly “mob” of citizens.
    

11. •Eight months ago, New Bern AWARE sent a letter to the Attorney General’s Office in Raleigh, explaining that the Soleil Group’s claim of right to the marina waters was based on an application which contained inaccurate information---The Soleil Group had indicated to the State that they owned the waterfront property and therefore had the right to an easement.
    

12. •Seven months ago the Mayor indicated that he would not make a decision on the Marina until the State made its decision. Seven months ago the City’s attorney indicated that the State would come back in favor of the Soleil Group. Seven months ago, the City’s attorney was wrong.
    

13. •Four months ago the State Property Office informed the City that the Soleil Group’s easement was voidable due to  "mistakes of facts" in the Application.
    

14. •Four months ago, after it received the decision from the State Property Office, the City refused to recognize the decision and scrambled for a new way to allow the Soleil Group to sell the slips.
    

15. •Four months ago the City’s Attorney advanced a new theory which would allow the Soleil Group to sell slips:  He stated that a 1985 Disposition and Development Agreement between the City and the Developer of the Sheraton had conveyed the Developer and its successors in interest the rights to do what they wanted with the Marina.
    

16. •Four months ago the City’s Attorney was wrong again.  The Disposition and Development Agreement says no such thing.
    

17. •Two months ago the City hired Gordon Brown to make a so called “independent” analysis of the Disposition and Development Agreement.
    

18. •The real purpose of the so called “independent” analysis was to bolster the City’s position.  Why the City is going through all the time and expense to give away the Marina is still a mystery.
    

19. •Gordon Brown presented his “independent” findings to the City at some sort of quasi open meeting during which he was allowed to speak freely, while the public was excluded from speaking.
    

20. •At the meeting, one of the owners of the Soleil Group jumped up and objected to the public speaking.
    

21. •Gordon Brown’s independent opinion was an almost word for word recital of Scott Davis’ rhetoric.
    

22. •Last month. The Soleil Group went to the State of North Carolina in an attempt to Get the State to issue a different type of Easement to them.
    

23. •The easement they applied for, NCGS 146-11, is not an appropriate easement for this situation, but that did not stop the City from passing a Resolution Granting the State permission to issue to the Soleil Group.
    

24. •The 146-11 easement will not resolve this issue, because the City has the obligation to protect its citizens’ property rights.  Despite what the Soleil Group says or does, it is not the riparian (land adjacent to public waters) owner, and unless the City sells the waterfront to them, the Soleil Group will never be the riparian owner--there is no way around that, no matter how many politicians the Soleil Group gets to endorse them.
    

25. •Last week the Counsel of State backed the Soleil Group.
    

26. •The Counsel of State, however, cannot change the fact that riparian rights cannot be severed from the riparian land in North Carolina.  Nothing can change that but a new Statute or interpretation by the North Carolina Supreme Court.
    

27. •If the Counsel of State’s position is correct, that it is right to give non-riparian owners the right to build marina’s on someone else’s riparian waters, riparian law in this State will be turned on its ear.
    

28. •The logical conclusion of the Counsel of State’s theory is that someone from Fayetteville or Kinston or Asheville can apply for a 146-11 easement in front of your waterfront property, and if they can get the Governor to go along with it, well then they can build a marina right there in front of your beautiful waterfront home.
    

29. •The law is pretty simple:  You buy a waterfront home, you own the right to dock out and to exclude anyone else from docking out on your riparian property. 
    

30. •The City of New Bern, more precisely, the Citizens of New Bern own waterfront property. Unfortunately, some rich and powerful Raleigh developers, who have donated thousands and thousands of dollars to members of the Counsel of State, are trying to profit from your marina…they are now selling long term leases, not slips themselves.  But the result is the same…the slips will be tied up for decades by the few rich and elite who are able to pay hundreds of thousands for a slip.
    

31. •The fact remains that the City and the Citizens will not benefit from the Sale of Long Term leases….the Soleil Group will reap all of the profits, at your expense.
    

32. •This week, the Governor has signed the easement, allowing New Bern Officials and the Soleil Group to go ahead with their plans to separate the public from public waters and public waterfront access.  New Bern, once the capital of an occupying government, now a capital of occupying power of privateers.
    

33. •New Bern AWARE is committed to fighting for New Bern’s property rights.  New Bern AWARE encourages all citizens of New Bern and North Carolina to demand better from their elected officials.  Call them. Let them know you are not happy with them giving away your land, you money, your rights to the private investors of the Soleil Group whose primary objective is to sell public dockage at premium rates to the exclusive few who can afford it, eliminating transient and moderate and retired income dockage at New Bern’s waterfront while the Soleil Group rakes in all the profits of your public land.
    

34. •What’s next?  Shall we allow them to put condos in the library, or in the City Hall?
    

35. •What about a hotel in the middle of Union Point?
    

36. •Of course not. Consider AWARE’S detailed analysis regarding the city’s ownership and why city officials should not bend to the pressures of private investors.  We hadn’t published it over a month ago when written because we were attempting to communicate with the city regarding its opportunity to protect its citizens.  But be informed.  Our delay in letting you know only allowed public officials to continue operating behind their own closed doors.  Be informed. And be AWARE.
    

37. •Better yet, be involved. Utilize your ultimate power to call your papers, your public officials, your state government—note the below fax sent by a New Bern Citizen to Beverly Purdue this week.
    

38. •Better yet, In the next election, vote only for those leaders who will protect public rights in one of the most visited, recreational and leisure states on the east coast.  And if they won’t protect your rights, NOTE ALL THE CITY’S AND STATE’S NON-DEFENDERS, NON-DELIVERERS OF PUBLIC RIGHTS.  AND VOTE THEM ALL OUT OF OFFICE.
    

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    BELOW: A PROTEST SENT TO BEVERLY PERDUE FROM A CONCERNED NEW BERN CITIZEN
    

Lieutenant Governor Beverly PerdueAugust 21, 2008

RE: EASEMENT FOR Soleil Group/Marina Business Ventures, LLC

For your edification I would like to present a few facts concerning this proposed Easement that the State stands ready to grant to Marina Business Ventures.

First the Statue that governs easements for State Property that the State has declared applies to this particular situation.

GENERAL STATUTE: § 146-11.  EASEMENTS, RIGHTS-OF-WAY, ETC.

The Department of Administration may grant easements, rights-of-way, dumping rights and other interests in State lands, for the purpose of

(1)       Cooperating with the federal government, (Not applicable in this case)

(2)       Utilizing the natural resources of the State, or (Public Trust Waters)

(3)       Otherwise serving the public interest. (Is it in the public interest to turn a public facility over to someone who is                  going to sell it?)

“The Department shall fix the terms and consideration upon which such rights may be granted. Every instrument conveying such interests shall be executed in the manner required of deeds by G.S. 146-74 through 146-78, and shall be approved by the Governor and Council of State as therein provided, or by the agency designated by the Governor and Council of State to approve conveyances of such interests. (1959, c. 683, s. 1.)”

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Our take on this; As Citizens and Voters of New Bern, we believe that the City of New Bern owns the Waterfront, Riparian Land and as such the State has no Legal Basis for Granting an Easement to this land under current this Statue. THIS IS NOT STATE OWNED RIPARIAN LAND.

(General Statue: § 146-64.  Definitions.

State lands" means all land and interests therein, title to which is vested in the State of North Carolina, or in any State agency, or in the State to the use of any agency, and specifically includes all vacant and unappropriated lands, swamplands, submerged lands, lands acquired by the State by virtue of being sold for taxes, escheated lands, and acquired lands.)

This is the Statue that applies to NON State Owned Land:

GENERAL STATUTE: § 146-12.  EASEMENTS IN LANDS COVERED BY WATER.

(a)       The Department of Administration may grant, to adjoining riparian or littoral owners, easements in lands covered by navigable waters or by the waters of any lake owned by the State for such purposes and upon such conditions as it may deem proper, with the approval of the Governor and Council of State. The Department may, with the approval of the Governor and Council of State, revoke any such easement upon the violation by the grantee or his assigns of the conditions upon which it was granted.

EVERY SUCH EASEMENT SHALL INCLUDE ONLY THE FRONT OF THE TRACT OWNED BY THE RIPARIAN OR LITTORAL OWNER TO WHOM THE EASEMENT IS GRANTED, shall extend no further than the deep water, and shall in no respect obstruct or impair navigation.

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Well Bev Perdue, this is us! We, the Citizens of New Bern are the owners of the Riparian, (waterfront) land on the Trent River.  NOT THE STATE OR Marina Business Ventures/THE SOLEIL GROUP!

The State Property Office on April 28, 2008 issued a letter stating that the City of New Bern does own the Waterfront, Riparian Land. And this fact has been backed up by the States expert on Waterfront and Riparian Land, Joseph J. Kalo, Graham Kenan Professor of Law, UNC-Chapel Hill School of Law

So, you need to ask, how can your “Council of State” think that a Statute about State Owned Land is pertinent to our City Owned Riparian Land?

Now let’s examine the company that you, The State, are making such a great effort to grant them rights that belong to The City Of New Bern:

Are you aware that the Soleil Group Filed Falsified Documents in order to get their first Easement back in 1998?

They filed a Copy of a Trust Deed with Falsified Boundaries and submitted a Plat Map upon which the 30 foot wide Waterfront Lots that the City of New Bern owns, (commonly called River Walk), were erased so that anyone looking at the Plat Map and reading their falsified Deed would erroneously come to the conclusion that The Soleil Group owned the waterfront land and thus had Riparian Rights.

Since the State Property Office or any other State Agency did not bother to investigate any part of the “Application for Easement”, it was issued to The Soleil Group.

(Now if someone in Raleigh had done their job properly and done just one minor check, like having The Craven County Registrar of Deeds send a copy of the Deed they had on file, this entire matter would have been settled 10 years ago. But, no one did, and now the State finds itself in a situation that has the potential to be very embarrassing, and costly.)

New Bern AWARE uncovered this evidence of fraud on the part of The Soliel Group and sent all the documentation to the Attorney Generals Office.

After months of weekly calls to the AG’s Office, who kept saying, “I will make a determination in another couple of weeks”, They received a copy of a letter from the State Property Office that said “there appears to be a mistake of fact concerning the application for the easement.”

(We assume that “Mistake of Fact” is Political Double-talk for Fraud, much in the same way that  “Phraseological Inexactitude” is Double-talk for a Lie.)

What is really troubling about this situation is this:

(1). That the Attorney General’s Office did not pursue this matter and file Charges against The         Soleil Group for Fraud or Attempting to defraud the State.

(2). That the State seems to be rewarding the company that committed this fraud against the                State by bending the meaning of the very laws they are sworn to uphold, in order to issue an        easement the company that tried to defraud them.

(There is a lot of Political hay to be made from these actions by the State, Lots of embarrassing questions to be asked of candidates during open debates and rallies.)

If this Easement is issued to The Soleil Group, DBA  Marina Business Ventures, We and several of our friends and neighbors stand ready to file a Taxpayers Lawsuit against the State of North Carolina and The City of New Bern. 

This lawsuit will name: Govenor Mike Easley,  Lieutenant Governor Beverly Perdue,   Attorney General Roy A. Cooper, III,  Secretary of State Elaine F. Marshall and several other top state officials as defendants.

Meanwhile, We and all of our friends and neighbors, will be out campaigning door to door, for your Republican Opponent.

We will hold rallies, inviting all the Press from around the state.

We will tell them, that we are doing this because Bev Perdue Sold Out New Bern.

She sold it’s Riparian Rights to some shady developers. And this opens the way for them make millions of dollars at the expense of the Citizens of New Bern.

She did all this, while ignoring the fact that this developer commited fraud against the State of North Carolina and the City of New Bern.

And the Easement rightfully belongs to New Bern.

Should make some nice headlines.

New Bern Citizens Rally Against Home Town Candidate for Governor.

“CLAIMS “BEV SOLD US OUT!”

We resent our rights being trampled on and having our marina taken away from us, and we will let the world know about if it happens.  There are no excuses if this Easement is granted!

Paul R. Barry   Lynn C. Barry

PS: The way this should have been handled, was for the City of New Bern to get the Easement and Lease it to; Marina Business Ventures/Soleil Group! This is what would make all the Citizens of New Bern happy and keep the Soleil Group from selling the slips.

   But, our Mayor and City Attorney seemed intent in just giving the Riparian Rights away to the point of even suggesting that the City give the land away. Public outcry against them made them back off that idea. But when threatened with a substantial Lawsuit by The Soleil Group, pending their decision they threw the matter into the hands of the State. Oh! Did I mention that the City has NO Liability Insurance against Lawsuits?

PPS: In their arrogance, Marina Business Ventures/Soleil Group has an 80 foot electronic billboard offering Slips for Sale an “New Bern Grand Marina”. It has been up for months. They have been advertising “Slips for Sale” on the Sheraton web site for about a year. This makes us think that they had already done what was necessary in Raleigh, to insure that they would get the easement one way or the other. A lot of people in town are talking about “Political Contributions” playing a large role in this mess.

I don’t know about that But I do know right from wrong and what the State is proposing is wrong. prb 

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   As waters begin again to fill Falls Lake and revive the Neuse’s extensive recreational potential, serious concern remain at the Neuse’s headwaters for the large boating community.  In other words, New Bern skies remain shadowed over issues of public access and a viable, developing waterfront for one of the state’s most historic towns.  Help make New Bern a public waterfront community.  Share your support with New Bern AWARE.
   

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9. Copyright © 2008 by New Bern AWARE, Inc.  Photography Copyright © 2008 by Kirk Hathaway. All material within this site is property of New Bern AWARE, except photographs which are property of Editor Kirk Hathaway.  No material may be duplicated or utilized without the expressed permission of New Bern Aware.  Permission, however, is granted to all news sources who wish to draw from this site for stories or articles in which New Bern Aware is mentioned in its capacity to preserve and protect the waterfront of New Bern, NC for public access and use.