Tracy Drive lawsuit could go to Supreme Court

By Kym Soper
Journal Inquirer
Published: Tuesday, May 20, 2008 11:44 AM EDT

VERNON — A Tracy Drive couple is asking the Appellate Court to reconsider its earlier decision allowing a developer to build a road through a parcel of land they own and have maintained as a side yard since the early 1970s.

The motion for reconsideration, filed on Friday, lays the groundwork for a potential Supreme Court case.

It follows a May 6 opinion by Appellate Court Judge C. Ian McLachlan that upholds a lower court’s decision against defendants Frederick and Barbara Goff, who have been barring access to the 50-foot-wide parcel in their side yard at 130 Tracy Drive.

Three years ago the town sued the Goffs, and Supreme Court Judge A. Susan Peck ordered the couple to remove their fence and “no trespassing” signs and allow developers to build a road on the public right-of-way. The road would give developer Kenneth J. Boynton entrance to 40 acres in the rear of the Goff’s property that was once known as the Doherty family farm. Plans for that site call for an already approved 41-lot subdivision between Tracy Drive and West Street.

The Goff’s, who maintain the town never took ownership of the right-of-way as a separate road and that they hold the deed, filed an appeal.

When the Appellate Court denied their claim earlier this month, Fredrick Goff said he would consult with his lawyer to discuss options, but could see the lawsuit going all the way to the Supreme Court.

The latest motion is a procedural step towards that end.

Goff’s lawyer, I. David Marder, says the suit is unique, as it’s the town that brought the initial action against a property owner in favor of a developer for an entirely different piece of land.

“The town is doing the bidding for a developer who just wants to maximize the number of building lots. He has access off West Road, but if he used only that he would have less lots,” Marder said.

Without a through road from Goff’s property on Tracy Drive to West Street, Planning and Zoning Commission regulations would require the developer to build a cul-de-sac, drastically reducing the number of houses he could build.

Angering Goff even further is an agreement that the developer will pay the entire town’s court costs, Marder added.

“That is not the job of the Town Council to do the bidding of a developer — it’s just not right,” Marder said.

In their appeal the couple claimed that the court improperly shifted the burden of proof on them rather than the town by expecting the Goffs to prove the Town Council failed to take possession of the disputed strip of land.

The Appellate Court judge wrote in his opinion that while the language of the council’s minutes was “not perfect,” the council did accept “the comprehensive recommendation” of the PZC to take ownership of all roads, utilities, easements, and drainage rights-of-way in the approved Tracy Drive subdivision.

“The court found that it was illogical to exclude from that acceptance the designated 50-foot right-of-way that had been reserved for future use,” McLachlan wrote.

But the “lower court said the right-of-way in question was not a road, so how could the council accept it as such? They never said anything about the right-of-way for a road, only easements,” Marder said, adding: “When you’re dealing with peoples’ property rights, and the language isn’t perfect, it should be construed against the town not the property owner.”

Hal Cummings, who represents the town in the lawsuit, said Monday that he expects the court to uphold the town’s position.

“There’s really nothing new here,” Cummings said.