September 3, 2014

Essex Planning Commission Abandons a “Public Access” Pathway to North Cove, in a Deal with Foxboro Developer

Attorney Terrance Lomme and Sciame Vice President John Randolph explaining their compromise plan to the Commissioners

The Essex Planning Commission has decided to junk its original plan to create a “public access” pathway, running down from Foxboro Road to the waters of North Cove. The pathway plan was originally put forward as a condition for the Commission’s approval of the development of 11 plus acres at Foxboro Point by a private developer, Frank J. Sciame, Jr. This original plan had been challenged by developer Sciame, and, separately, by a group of Foxboro Point neighbors, in state Superior Court.

Darker lines show new small viewing pocket agreed by the Commission

In place of the original plan, the Commission has now accepted a “compromise plan” with Sciame’s development company, which would create a new, small pocket park on Foxboro Road. The original “public access” walkway from Foxboro Road down to North Cove, once agreed to be the Commission, has now been completely abandoned.

Red lines indicate original Commission approved “Public Access” path to the North Cove

At the Commission’s recent November 27 meeting, Sciame’s counsel, Terrance Lomme, offered the Commission the compromise proposal. This proposal eliminates, totally, the “public access” walkway to the water, and puts in its place a small, pocket park off Foxboro Road.

Final Approval of Compromise Plan at December Meeting

The final acceptance by the Commission of the roadside public park proposal is expected to take place at the Commission’s December meeting. The measurements of the small, pocket park are 75 feet by 80 feet, with an overall size of 6195 square feet.

In contrast, the square footage of the now junked, public pathway to the water from Foxboro Road to North Cove would have required 21,500 square feet on the development site.

Not a single member of the Planning Commission raised an objection to the complete scuttling of the Commission’s original “walk to the water” proposal at the November meeting, at least in the public portion of that meeting.                 

Secret Commission Discussions of Compromise Plan

The Commission made its decision to junk the original “walk to the water” plan, and to replace it with a small pocket park, at a two hour Executive Session at its November meeting. The general public is excluded from attending Executive Sessions of the Essex Planning Commission.

Ironically, when the Commission’s “walk to the water” plan was challenged in Superior Court by the developer, as well as by a group of neighbors in a separate action, one of the grounds for the challenges of both was that the Commission had made its approval of the original plan in a manner that “deprived the general public the opportunity in listening to its reasoning …”

On this ground alone the developer and neighbors’ counsel asked the Superior Court to throw out the Commission’s original walkway to the water plan in two separate lawsuits.

However, in presenting its compromise proposal at the November meeting the developer’s representatives, who included Sciame Vice President John Randolph, did not say a word about objecting to the Commission’s Executive Session that considered the compromise proposal.

“Executive Sessions” May Violate State Open Meetings Law

Many open meeting advocates are troubled by the practice of local regulatory bodies, such as the Essex Planning Commission, who hold their key discussions of applications before them in secret, Executive Sessions. Some charge that this practice violates the Connecticut Freedom of Information Act.

This Act, after all, provides that meetings of a “public agency … which is meeting “to discuss or act upon a matter over which the public agency has jurisdiction” should be made at an open meeting. However, to date a legal challenge to the Essex Planning Commission’s practice of going into Executive Sessions to discuss important decisions has not been challenged in a court of law.

This issue aside, the Essex Planning Commission’s decision at its last meeting to join the developer in abandoning, completely, the Commission’s original decision to allow full “public access” to walkers to the waters of North Cove, and replace this extensive walkway with a crimped little park up along the road, is truly surprising.

How to Explain the Commission’s Retreat from Its Original Plan

One informed observer of the Commission’s evident determination to accept the developer’s compromise said that the Commission may have made such a decision, because it had doubts about the legal validity of the “public access” doctrine.

In fact, Essex Attorney John Bennet, who represents a group of neighbor interveners, has on a number occasions given impassioned speeches at Commission meetings, exhorting the Commission to accept the fact that “public access” has no legal validity.

If “public access” as a doctrine is on shaky legal ground, then recognizing a right of “public access” could be decided more on the basis of a developer’s civic generosity than on a firmly grounded, legal principle.

Other Elements of the Compromise Plan

In addition to retreating, radically, as to the reach of “public access,” the compromise plan of the developer was modified in a number of ways by the Commission.

One the developer’s suggestions called for the creation of new parking spaces for visitors along Foxboro Road. This proposal was totally rejected by the Commission. In fact, the elimination of new parking spaces on Foxboro Road might well have been welcomed by the developer, because it would mean fewer “public access” visitors at the proposed, pocket park viewing site.

Another restriction, insisted on by the Commission, was that the hedges around the small viewing area should not be higher than three feet. Also, no trees should be planted by neighboring land owners that would impede the visual sighting of the iconic Foxboro Point windmill from the viewing perch.

Foxboro windmill can be viewed from proposed pocket park

In addition, on the large conservation easement area that runs along the base of the development property, the Commission wanted no plantings or the setting up of lawn furniture and the like by adjoining property owners.

Finally, the developer is required to make a money payment of $120,270 to the town in connection with the development.

Future Looks Bright for Compromise Plan

It is widely expected that at its December meeting, the Essex Planning Commission will give its full approval of the compromise plan, as put forward by the developer, and modified in minor ways by the Commission.

Of course, Attorney Bennet’s lawsuit on behalf of the neighbors of the development would still be pending before the Superior Court, even after the Commission and the developer settled their dispute. However, since the neighbors are more spectators than principals in the actual development, it is questionable that they could hold up the entire project, just because they do not want any new neighbors.