Tracy Drive development foes’ appeal denied

By Kym Soper
Journal Inquirer
Published: Friday, July 11, 2008 11:14 AM EDT

VERNON — The Appellate Court has once again denied a Tracy Drive couple’s attempt to thwart the plans of a developer who wants to build a road through their property.

Federick and Barbara Goff asked the court to reconsider its earlier decision to uphold a lower court’s ruling against them and in favor of the town and developer Kenneth J. Boynton.

That motion for reconsideration, which lays the groundwork for a potential Supreme Court case, was denied on June 30.

Undaunted, Goff says he plans to fight on.

He spent the week reading over the draft of a petition asking the state Supreme Court to take up the case. The deadline for filing the document is July 15.

“I think this is a wrong decision legally, and it sets a terrible precedent for the future,” Goff said, adding: “When my great-grandchildren read about this case in the law review, I want them to see that I’ve done everything possible to protect their rights.”

The suit revolves around a strip of land the Goff’s bought in 2005 and maintained as a side yard since the early 1970s at their 130 Tracy Drive house.

Three years ago Boynton won approval from the town’s Planning and Zoning Commission to build a subdivision of 14 homes and 58 units of age-restricted housing known as Ogden Brook Estates to the rear of Goff’s property on 47-acres between West Street and Tracy Drive.

The entrance for the age-restricted community would be off West Street. Access to the 14 single-family homes, however, would come from a new road constructed adjacent to the Goff home on a right-of-way created when Tracy Drive was built during the late 1960s.

It’s the same strip of land the Goff’s had been using as a side yard for 30 years and formally acquired the deed to in June 2005.

After purchasing the tract, the Goffs threw up fencing barring access to the 50-foot-wide parcel, prompting the town and Boynton to file suit.

Town Attorney Hal Cummings is representing the plaintiff while Boynton is footing the bill.

Superior Court Judge A. Susan Peck ordered the couple to remove their fence and allow developers through, and last May Appellate Court Judge C. Ian McLachlan, upheld that decision.

The judgment basically says that the town did, in fact, take possession of the parcel in question back when Tracy Drive was built.

Goff’s lawyer believes the Supreme Court will be interested in the case because of its unique characteristics.

It’s not often that a town sues a property owner in favor of a developer over for an entirely different piece of land, Goff’s lawyer, I. David Marder said.

Boynton has access to his interior property from West Road, and doesn’t need entry from Tracy Drive, the opponents argue.

Except without a through road from Tracy Drive, Boynton would be required to build a cul-de-sac and drastically reduce the number of houses he could build.

The fact that Boynton is financing the town’s lawsuit makes the entire matter corrupt, Goff and Marder say.

As for the town’s side, Cummings argues that Goff’s attempts are in vain. The plan to build a subdivision using the access strip off Tracy Drive has been approved and upheld at every step, he said.

Meanwhile, developers have plowed under the Goff’s lush lawn this summer, laying crushed rock and moving in heavy equipment.