Judge upholds Tracy Drive development decision

By Kym Soper
Journal Inquirer
Wednesday, April 30, 2008

VERNON — The Appellate Court has upheld a lower court’s decision against a Tracy Drive couple, clearing the way for developers to access a right-of-way and start building a subdivision in a wooded area between the couple’s house and West Street.

Lawyers were notified Tuesday that the 2006 Tolland County Superior Court decision barring Frederick and Barbara Goff of 130 Tracy Drive from blocking access to a 50-foot-wide public right-of-way in their side yard has been affirmed.

The Appellate Court opinion was made available late this morning.

Nearly three years ago the Goffs filed an appeal of Judge A. Susan Peck’s order to cease restricting access to the land.

The earlier decision, upheld today, allowed local developer Kenneth J. Boynton to construct a new road to access his approved residential subdivision on more than 40 acres between West Street and Tracy Drive.

Boynton argued that construction of a road over the right-of-way was necessary to gain access and complete the proposed project.

Goff, contended, however, that while the Planning and Zoning Commission did sanction and map out the right-of-way when the Tracy Drive subdivision was approved in the late 1960s, the Town Council missed a necessary step by not taking title to the land.

At the beginning of the controversy, the Goffs paid $3,000 to secure a deed to the strip, and placed a fence across the 50-foot right-of-way that they’d been maintaining for years as a side yard.

The fence was removed shortly after Peck issued the injunction and over the last year or so developers have cleared the land, laid a gravel base for the road, and last fall installed sewer and utility lines.

Town Attorney Hal Cummings said Tuesday, “The town’s position is that when we laid out a plan of development, the Town Council accepted a map which included the strip as a right of way for future use as a road to connect to the subdivision — I don’t think the Doherty family, who sold their farm to developers back in the ’60s, would have landlocked 40 acres,”

“This has been a longstanding dispute — a three-year saga — and I’m very pleased that the town’s position has been affirmed,” Cummings added.

Town officials argued that the right-of-way was dedicated when the Tracy Drive development was first constructed in the late 1960s and early 1970s.

Originally it was intended to access 13 residential lots that would be created by a subdivision approved in 2005.

But a year later the legal battle over the right-of-way escalated when the PZC approved an additional 28 lots for a 30-acre parcel adjacent to West Street, with the caveat that they be connected to the 13-lot subdivision, for a total of 41 lots.

According to town officials, Boynton is paying the legal costs incurred by the town as part of the right-of-way dispute.

The Goffs appealed the PZC’s initial 2005 approval of the 13-lot subdivision, but did not appeal the commission’s later approval of the 28-lot extension.

Fred Goff said earlier today he was awaiting release of the opinion before considering his next step.

According to Goff, developers never obtained a permit to dig and lay sewer lines.

Furthermore, a right-of-way guarantees passage only over a road and not the right to dig on the privately owned land underneath, he added.

“There are a couple of different things we could do, but I want to see what the decision says first,” Goff said.