Smart Growth for Vernon, CT
PZC considers subdivision as crucial court decision looms

By Jason Rowe
Journal Inquirer
September 7, 2006

VERNON - The Planning and Zoning Commission will resume hearing public testimony tonight on a proposed subdivision on West Street, as the parties in a key lawsuit prepare their final court arguments.

The PZC will resume hearing testimony at 7:30 in the Senior Center on Park Place regarding local developer Kenneth Boynton's plans to develop 30 acres at 214 West St. into 28 residential lots.

Meanwhile, a critical piece of litigation - which could affect Boynton's ability to complete the residential development - could be close to a resolution.

In March, the town asked the court to issue an injunction against Frederick and Barbara Goff of 130 Tracy Drive, prohibiting them from blocking public access to a 50-foot-wide piece of property adjacent to their home, which officials believe is a right-of-way.

The right-of-way, which officials say was dedicated when the Tracy Drive development was approved and constructed during the late 1960s and early 1970s, would be used to access 13 residential lots created by an already approved subdivision.

Lawyers from both sides have prepared final arguments and are scheduled to return to Superior Court on Sept. 21, according to the state Judicial Department Web site.

In legal papers filed last week, special town counsel Harold Cummings argues that the Goffs knew that land was set aside as a right-of-way when they purchased their home in 1971 and that the town has never assessed or taxed the land.

And although the town has never maintained the land, Cummings wrote, the town has never formally abandoned the strip as a right-of-way.

"The fact that the right-of-way is at this time unpaved and no automobile traffic has passed over it to date is immaterial," Cummings wrote. "All of Tracy Drive (including the right-of-way) is a public highway by virtue of the formal acceptance, and actual use is not necessary for it to remain so."

But the Goffs' lawyer, I. David Marder, argues that there is no evidence the Town Council voted to accept the right-of-way when it formally dedicated the Tracy Drive subdivision in 1970.

Since moving to the neighborhood, Marder said, the Goffs have maintained and used the land as their own.

"Nowhere did the Planning and Zoning Commission or the Town Council refer, mention, or hint as to the disputed right-of-way," Marder wrote in legal papers filed on Friday. "They could have done so with ease, but did not, and thus the reasonable inference is that they did not choose to accept that area as part of Tracy Drive. Had the town received a deed from the developer, further clarification might have been available, but no deed was obtained."

The Goffs have filed lawsuits against the town, challenging wetland and PZC approvals relating to the 13-lot residential subdivision.

If the court rules against the town, it could complicate matters for both subdivision proposals, especially if the PZC requires Boynton to forgo planned cul-de-sacs in both developments in favor of a through-street between West Street and Tracy Drive.

During the PZC's Aug. 24 meeting, neighbors of the proposed project expressed concern that the new road would have an adverse affect on traffic in their neighborhood.

They also argued that the town did not do an adequate job of notifying residents about the latest proposal for the 30-acre site on West Street.

A 59-unit age-restricted housing development had been proposed for the site this year, but the PZC rejected those plans.

Town officials were expected to send out additional notices to residents who might be affected by a proposed through street.

©Journal Inquirer 2006