Vernon man dismayed over appellate loss

By Kym Soper
Journal Inquirer
Thursday, May 1, 2008

VERNON — A Tracy Drive couple’s lawsuit against the town is without merit on two fronts, according to an opinion released Tuesday by Appellate Court Judge C. Ian McLachlan, upholding a lower court’s decision.

Defendants Frederick and Barbara Goff filed an appeal of Superior Court Judge A. Susan Peck’s order made three years ago that the couple cease barring access to a 50-foot wide public right-of-way in their side yard at 130 Tracy Drive.

Developers say that construction of a road over the right-of-way was necessary to gain access and build an already approved subdivision between Tracy Drive and West Street on 40 acres once held as the Doherty family farm.

The Goffs maintained that the town never accepted ownership of the right-of-way as a separate road, and that they, in fact, held title to the property.

The couple also claimed in their appeal that the Superior Court improperly shifted the burden of proof to them rather than the town by expecting the Goffs to prove the Town Council failed to take possession of the disputed strip of land.

Although the language of acceptance for the land in Town Council minutes was “not perfect,” the council did accept “the comprehensive recommendation” of the Planning and Zoning Commission to take ownership of all roads, utilities, easements, and drainage rights-of-way in the approved Tracy Drive subdivision, McLachlan wrote.

“The court found that it was illogical to exclude from that acceptance the designated fifty-foot right-of-way that had been reserved for future use,” he wrote.

As for the burden of proof, the defendants’ argument relies on “a few isolated remarks by the court” regarding another similar court decision used for the purpose of distinguishing differences.

Furthermore, when the court issued its oral decision, it stated that the town has to prove its claim by a preponderance of the evidence, McLachlan said in the ruling.

The opinion clears the way for developer Kenneth J. Boynton to start building a 41-lot subdivision using the right-of-way to gain access to the landlocked area.

Goff said this morning he was “shocked” by the opinion and planned to speak with his lawyer today to discuss options.

“They start off with calling the right-of-way an extension — it’s not an extension. It’s a separate road — I don’t think that’s a rational position,” he said. “I think this is bad law — it’s a bad decision. There are several technical things wrong with it.

“I expected to find good, sound logic, but I found something that sounded like it was written” by the town attorney, Goff added.

Hal Cummings, who represented the town in the lawsuit, said Tuesday that he was pleased the court upheld the town’s position and that the three-year saga was nearly over.