Tracy Drive couple appeals court's subdivision access decision
By Jason Rowe
VERNON - A Tracy Drive couple has appealed a recent Superior Court decision barring them from blocking access to a 50-foot-wide public right-of-way in their side yard.
On Tuesday, Frederick and Barbara Goff of 130 Tracy Drive filed an appeal of the Nov. 8 decision by Judge A. Susan Peck, ordering the couple to cease restricting access to the land.
Peck's decision cleared the way for local developer Kenneth J. Boynton to construct a new road to access the recently approved residential subdivision on more than 40 acres between West Street and the couple's home. Boynton's ability to construct a road over the right-of-way was seen as critical to his ability to complete the proposed project.
Goff said today that he is appealing the injunction because he believes Peck acted in error when she made her Nov. 8 ruling.
Although the Planning and Zoning Commission might have approved the right-of-way when the Tracy Drive subdivision was approved in the late 1960s, Goff said, the Town Council missed a necessary step.
"We don't dispute that the land was dedicated for that use and it appeared on a map," Goff said. "What we are saying is that the town never accepted it."
But Special Town Counsel Harold Cummings said today that he thinks Peck's decision was factually sound and would stand the scrutiny of an appeal.
"It has been my experience that when you have a fact heavy or fact sensitive proceeding, the appellate court is hesitant to second guess or overturn the trial court decision," Cummings said. "Judge Peck conducted an exhaustive hearing."
In March, the town asked the court for 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 further implications earlier this month when the Planning and Zoning Commission approved an additional 28 lots for a 30-acre parcel adjacent to West Street.
At the request of the fire marshal and Public Works Department, the PZC conditioned its approval on Boynton's 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 is also under appeal by the Goffs, who did not appeal the commission's most recent approval.
At the beginning of the controversy, the Goffs placed a rope chain across the 50-foot right-of-way, warning people to keep off the strip of land.
That rope was removed shortly after Peck issued the injunction.
©Journal Inquirer 2006