Smart Growth for Vernon, CT
Court says developer can use Tracy Drive right-of-way

By Jason Rowe
Journal Inquirer
November 9, 2006

VERNON - A Superior Court judge has issued an injunction against a Tracy Drive couple trying to prevent developers from using a 50-foot-wide, public right-of-way in their yard to access a new 41-lot residential subdivision.

With the injunction against Frederick and Barbara Goff of 130 Tracy Drive in hand, local developer Kenneth J. Boynton can now build the road to access the recently approved subdivision on more than 40 acres between West Street and the couple's home.

Judge A. Susan Peck issued the injunction Wednesday afternoon after hearing oral arguments from lawyers representing both the town and the Goffs.

In March, the town asked the court to issue an injunction against the couple, prohibiting them from blocking access to a 50-foot-wide strip of land adjacent to their home, which officials believed to be a right-of-way.

The right-of-way, which town officials say was dedicated when the Tracy Drive development was constructed during the late 1960s and early 1970s, originally was intended to be used to access 13 new residential lots created by a subdivision approved late last year.

But the legal battle over the right-of-way developed heavier implications last Thursday, when the PZC approved an additional 28 lots for a 30-acre parcel adjacent to West Street.

At the request of the fire marshal and the Public Works Department, the PZC conditioned its approval on Boynton connecting those 28 lots to the already approved 13-lot subdivision.

Boynton has agreed to cover the costs of legal fees incurred by the town as part of the right-of-way dispute, officials said.

The PZC's 2005 approval of the 13-lot subdivision decision is under appeal by the Goffs, who say they also will likely appeal the 28-lot approval.

Meanwhile, Boynton already has removed trees from the woods to the rear of the Goffs' house in preparation for construction.

Goff said today that he felt "blindsided" when he heard the decision in court on Wednesday.

"It was inconsistent with everything four good lawyers told me," Goff said. "It came as a complete surprise. I'm just going to have to rethink where I am."

In legal papers filed before Wednesday's oral arguments, the Goffs and their lawyer, I. David Marder, argued that there was 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.

The couple formally acquired the strip of property last year when they became aware of Boynton's plans.

Goff said he intends to sit down with Marder on Monday to decide his next course of action.

Since the beginning of the dispute, the Goffs have placed a rope chain at both ends of a 50-foot strip, warning people to keep off the right-of-way.

Goff said he intends to remove the chains once he is formally served with the injunction.

Arguing for the town, special town counsel Harold Cummings said that the Goffs knew the 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 said, no formal steps were ever taken to abandon the right-of-way.

Cummings said today that the judge's ruling was consistent with the will of town planning officials when they approved the Tracy Drive subdivision decades ago.

"She came to the conclusion that clearly this was intended to be incorporated into the road system," Cummings said. "Highways are basically easements and it doesn't make all that much difference who owns the land underneath."

©Journal Inquirer 2006