October 25, 2014

Five Foxboro Neighbors Appeal Essex Planning Commission’s “Public Access” Ruling

Five Foxboro neighbors have joined the cause of developer Frank J. Sciame, Jr. by filing their own Complaint and Appeal in Superior Court against the Essex Planning Commission’s approval of a “public access” corridor across Sciame’s development on Foxboro Road.  Sciame’s development is located on eleven plus acres that run along Foxboro Road and River Street overlooking the North Cove in Essex.

The protesting neighbors in this court action are Thomas D. Cunningham, III, Pamela H. Jones, Kathleen A. Maher, John N. Bauman and Jennifer W. Hunt. Their suit states that they all “are owners of real property which is located within 100 feet” of Sciame’s development.

The Foxboro property owners say in their suit that they are “aggrieved by the decision of the Essex Commission” to require a “public access” corridor to run across Sciame’s development. Their Complaint and Appeals track closely an earlier legal protest by Sciame, himself, in Superior Court.

Sciame filed his lawsuit on September 19, and the neighbors filed theirs two days later.  Both lawsuits are still pending before the court. The legal papers of the neighbors’ lawsuit were prepared by Attorney John S. Bennet, Esq.

The Measurements of the “Public Access” Corridor

The “public access” corridor approved by the Essex Planning Commission, and challenged by both appeals would run from Foxboro Road down to the waters of the North Cove. At Foxboro Road, the width of the corridor would be 150 feet. Then about half way down, the corridor would narrows to 75 feet until it reaches North Cove.

Map of the “public access” corridor outline in red on the Foxboro site plan

In its approval of the “public access” corridor across Sciame’s development, the Essex Planning Commission placed strict limits on the site’s use by the general public.  Specifically, the Commission required 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.” In addition, the Commission decreed that the use of the corridor could be limited to daylight hours.

The Arguments of the Neighbors’ Complaint

In their lawsuit the neighbors of the Foxboro Point development claim that the Essex Planning Commission’s order requiring a “public access” corridor across Sciame’s development “was arbitrary, illegal and an abuse of discretion.”

Furthermore, they specify nine reasons, most likely drafted by Attorney Benet, as to why the Superior Court should overrule the Essex Planning Commission decision on “public access.” The neighbors charge, referring specifically, to the Commission:

1. It has purported to require public access over private land, all beyond statutory authority of the Commission.

2. It has purported to take for public use an extremely valuable portion of the private Property which taking is beyond statutory authority.

(There is no number 3 listed in a lapse of draftsmanship.)

4. It has engaged in an unconstitutional taking of property without compensation and inverse taking of the property of the Plaintiffs. (Presumably, this “inverse taking” refers to the lowering of the real estate values of the neighbors’ properties.)

5. It is creating a sixty thousand square foot lot (in a town) zone which is nonconforming in several ways, contrary to the Essex Zoning regulations.

6. That the members of the Commission had predetermined this application, and were biased as to their consideration of the application. (This bias by Commission members was also charged in Sciame’s lawsuit.)

7. It has acted in violation of pursuant to (a provision of state law) by issuing its approval of the filed application as it failed to act within 65 days of the close of the public hearing as required by (state law.)

8. By requiring that Sciame deed the open space instead of restricting it by easement as allowed (in a section of town) regulations.

9. By requiring that the applicant provide over 31% of the property [to open space] when its regulations only call for 20%.

10. By deliberating and discussing the motion to approve in Executive Session, it  deprived the public the opportunity to listen to it reasoning, and there is no record of its reasons for the court to review and contrary to the Connecticut Freedom of Information Act.

The neighbors final charge regarding the Commission’s decision to go into a closed, Executive Session, when it discussed the merits of the application, could well be one of the arguments that could persuade the Superior Court to invalidate the Commission’s mandate for “public access” on the development site.

Many Other “Public Access” Sites Exist in Essex

The neighbors’ Complaint and Appeal also argues that there is already, “a 7.8 acre park located directly across from the [development] Property which has both public parking and access to the Falls River and the Connecticut River. This parcel is 70% of the size of the Property, and provides complete and adequate recreational and access facilities.”

However, Osage Trails, which is the town park referred to, does require a long walk before a visitor can reach the waters of the cove. Also, the view from the Osage Trails lacks the sweeping view of North Cove that would exist from the Commission’s “public access” corridor of the development.

Also, the neighbors’ argue in their lawsuit that, “Additionally, there are 12 Public access ways to the coves and rivers in Essex including four between the  Property and Main Street Essex, which is approximately one mile south of the Property.” Basically, the neighbors charge that the Town of Essex already has enough “public access” open spaces in town, and does not need another.

The Fully Equipped “Public Access” Site off Teal Lane

One of these existing “public access” sites is located just off Teal Lane in Essex. This truly excellent “public access” open space has a boat launch, boat racks and an elevated wooden sitting and viewing area. Also, there is plenty of room for parking, and there is a latrine on the site.

A premier “public access” site in on North Cove in Essex

However, even this fully equipped, “public access” site does not offer  the sweeping views of North Cove, the Great Meadow and the Connecticut River that a “public access” corridor on the Sciame development would offer.

In the Commission’s approval hearings Sciame went so far as to offer a visual “public access” easement from Foxboro Road to the North Cove below and beyond. In short, the waters could be seen but not walked to. However, this alternative was rejected by the Commission.

Still, indisputably, the Commission’s “public access” corridor at Foxboro Point, would uniquely offer a visitor the joy being able to walk down and back to the waters North Cove. However, as is evident by this lawsuit, the neighbors would not like it.