April 20, 2014

Foxboro Point Developer Appeals Essex Planning Commission Decision Requiring a “Public Access” Walkway Across His Luxury Development

Frank J. Sciame, Jr., opposed to “public access”

A prominent New York City developer filed an appeal on September 19 in State Superior Court in Middletown challenging a recent decision by the Essex Planning Commission that mandated a “public access” walkway across his proposed luxury development at Foxboro Point in Essex.

Frank J. Sciame, Jr., the developer, who is a Connecticut resident, charged in his Complaint that the Planning Commission’s requirement that he grant a “public access” walkway across his development property was “arbitrary, illegal and an abuse of discretion.” The “public access” walkway in dispute would go from Foxboro Road down to the waters of North Cove between the two easternmost lots of the seven lot development.

Most importantly, Sciame’s eleven acre-plus development along Foxboro Road and River Street, would spread across one of the last remaining open spaces along the Essex shoreline. Also, the development would include the historic Croft estate as one of the development lots.

The Croft mansion, one of the lots on the development site

Sciame plans to acquire the land on which Foxboro Point’s iconic windmill is located, but the windmill is not part of his development plan.

Sciame Offered a “View Easement” to Look Down at the Windmill

At one point during the extensive Planning Commission’s proceedings, the developer offered to incorporate a “view easement” over his property. This would have enabled visitors walking or biking along Foxboro Road to look down from the road and see both the windmill and the waters of North Cove below.

The iconic windmill at Foxboro Point

However, creating a “view easement” is a very different proposition from creating a “public access” pathway that would permit visitors at the site to walk down from the road to the North Cove shore, and back again.

Developer Alleges Financial Loss from “Public Access”

In his court papers Sciame lists a whole litany of objections to the ordered “public access” pathway across his property. Most of them concern the financial loss that he would suffer, if he was required to incorporate a “public access” corridor slicing through his development.

In fact, Sciame’s very first argument in his Complaint is that the Essex Planning Commission “has engaged in an unconstitutional taking of property without compensation.” In addition, Sciame complains that requiring a pedestrian walkway across his development would entail taking from him, “an extremely valuable portion of the subject property.”

A typical shoreline public access sign in Essex

He also argues that the pedestrian corridor from the road down to the shore would lower the value of “the remaining lots” of his development. He objects as well that, “By requiring public access over lot 6, the Commission has isolated Lot 7 from the rest of the subdivision.”

Other Objections to the Commission’s Decision                    

In another challenge to the Commission’s ruling the developer charges that the Commission failed to vote on his application, “within 65 days of the closing of the public hearing,” as is required by Essex’s subdivision regulations. In fact, the Commission did take 70 days to render its decision, missing the mandatory deadline by five days.

Another charge by Sciame against the Commission was, “That the members of the Commission had predetermined, and/or were biased to modifying the application.” However, there was no elaboration of this charge against a group of Essex residents, who unless proved otherwise were simply exercising their civic duty by serving voluntarily on the town’s Planning Commission.

Perhaps the Most Serious Objection to the Commission Decision

The developer also charges in his appeal to the state court that the Essex Planning Commission, “By discussing the motion to approve in Executive Session, it deprived the public the opportunity to listen to its reasoning … .” Also, earlier in the Complaint Sciame charges that, “the Commission went into an Executive Session for approximately one and half hours” … where, “Apparently they also discussed … their decision on the application.”

The reason for the legal strength of this objection is that public bodies, such the Essex Planning Commission, in most cases are required to make their decisions in an open, public way. In fact, Connecticut’s Open Meetings Law is built on this precept.

Although there are certain instances when a public body like the Essex Planning Commission can keep the public out, and go into executive session, in this application this appears not to be the case.

In fact, a full and open discussion by the Commission on a controversial doctrine like “public access” is just the kind of question that the general public should be entitled to hear. In response to this argument in Sciame’s Complaint, the Superior Court might even decide to throw out the Commission’s entire decision, because the most crucial part of it was arrived at in a manner that violated state law.

The Complaint Is an Informative Summary of the Case    

Sciame’s Complaint is an eminently readable summary the developer’s argument against the actions of the Essex Planning Commission. The legal counsel who drafted the Complaint is Attorney Terrance D. Lomme, Esq., an Essex resident. In this proceeding Lomme was acting in his capacity as a private attorney. Lomme is also a sitting state Judge of Probate with offices in Old Saybrook.

Among the items noted in the Complaint is that there were no less than four public hearings by the Planning Commission on the developer’s application, as well as two site walks. Public hearings were held on March 8, April 17, May 10 and June 14, and the two site walks on March 3 and April 20, according to the Complaint.

Also, the Complaint notes that, “the issue of open space was the main focus of each hearing.” Noted as well is that at one point in the Commission’s hearings the developer considered allowing “public access” on the development site. However, “Mr. Sciame, based on his conversations with the neighbors stated that he was not in favor of allowing public access.”

The Question of Mandating “Public Access”

Discussed at length in the Complaint was whether a town regulatory body, such as the Essex Planning Commission, could legally mandate “public access” on a private owner’s property. Both Attorney Lomme, and another private attorney who was also representing an interested party in the Foxboro Point application, agreed that, “Neither the town nor the state could take an open space area for public access without compensating for it.”

In the Complaint the Essex Planning Commission’s attorney, David M. Royston, Esq., is quoted as saying as regards public access, “In summary, given the lack of case law on the point or even addressing the issue of public access to open space, it would be speculative to attempt to predict the prospect of the ultimate success if litigation were to occur.”

In short, imposing “public access” on privately owned developments is still an open question.

The Specifics of the Commission’s “Public Access” Directive

In this case the Essex Planning Commission approved a 150 foot easement along the North Cove boundary of the property, as well as a public access/open space, easement pathway running from Foxboro Point Road down to North Cove. As for the specifics of the pathway, it would begin at the road with a width of 75 feet running down for 200 feet. Then, it would narrow to a width to 25 feet and would continue downward for 260 feet, until it reached the shore of North Cove.

Specific restrictions on this easement were noted in the Complaint, which provided that there could be, “no buildings, structures, or other improvements on the property other than a bench or benches to allow visitors to view North Cove.” Also, “public access” to the pathway may be restricted “to daylight hours.”

Few Visitors Expected on Public Access” Pathway

There is a general consensus, that even if the Commission’s plan is ultimately put into effect, that there would be very few visitors trekking up and down the “public access” pathway. However, it cannot be gainsaid that even if there were only a few visitors using the pathway, the fact of its very existence could lower the value of the neighboring luxury housing lots.

This is, most likely, the main reason that developer Sciame is going to the expense of bringing his lawsuit.

Sciame Lost a Recent Case in Superior Court

Finally, it is of interest to note that in a case not related in any way to this appeal, that Sciame last August lost a lawsuit in State Superior Court because of his installation of two, “too large” entrance posts in front of the house that he purchased from the estate of Katherine Hepburn in Fenwick.

Aerial view of the property Sciame bought from Katherin Hepburn’s estate

The judge in this case, in ruling against Sciame, wrote, “Apparently in certain neighborhoods, as in life, size does matter.” The judge then went on to enter an order that Sciame should shrink the size of his entrance posts, so that they were the proper size under local zoning regulations, and that he should do so within 45 days of the judgment.