December 15, 2019

Public Access, “Not in My Backyard,” say Residents of Foxboro Point at Public Hearing

The scenic landscape in all its splendor the morning after the Planning Commission meeting

The sentiment was loud clear at the Essex Planning Commission’s public hearing on May 10 at Essex Town Hall. The future neighbors of the Foxboro Point development do not want “public access” at the site.

Specifically, (1) local residents do not want to give the general public the right to walk down a pathway from the road to the water, and (2) they do not want to allow the general public to walk along the water’s edge of the site.

As evidence of the opposition of neighboring property owners to “public access,” every time a speaker attacked it, there was vigorous applause.  By contrast when Essex resident Bill Reichenbach got up to urge the Planning Commission to require “public access” at the site, both to the water and along the water, when he sat down there was nothing but a stony  silence.

Developer offers a little area of “public access”  

In something of a surprise, Judge of Probate Terry Lomme,  acting in his “after hours” capacity as counsel to the Foxboro Point developer, offered a new, very modest “public access” proposal to the Commission.

The essence of the proposal was that the developer would allow a small “pocket park” of “public access” at the site. Also, immediately below this “nice little park,” as Judge Lomme called it, there would be a visual, “public access” easement down to the waters of North Cove. This meant that a visitor to the “pocket park” would have a small viewing area to look down at the waters of North Cove, but not to walk there.

The proposed "pocket park" is shown at the top of a blue vertical strip. The horizontal green strip indicates the shoreline easement.

Planning Commission Chairman Dr. Thomas Danyliw appeared miffed that the developer had come forward with this new “pocket park” plan. He said that he thought that the developer had agreed at the last meeting to formulate a “public access” plan  that would incorporate a pedestrian path to the water from the road, as well as a pedestrian strip along the waterfront.

“I thought there was a general agreement to focus on this,” Chairman Danyliw said.  Instead, Judge Lomme was now ignoring what the Chairman thought the developer had agreed to, and was proposing an entirely new plan of “pocket park” access.

“This is a new proposal, and this is not what we agreed to at the last meeting,” Chairman Danyliw said, heatedly. “I was surprised,” he added.

Planning Commission Chairman Dr. Thomas Danyliw and Vice Chairman Linda Herman

In an attempt to deflect the Chairman’s ire, Judge Lomme said that he had, “listened to the neighbors of the development,” and that the new proposal was closer to what they wanted than what had been discussed at the last meeting. He added, “You can’t make everybody happy.”

“Public access” is not legally valid attorney charges

The next development at the public hearing was an even greater surprise. A resident of the Foxboro area had hired a private lawyer, named John Bennet, to represent him and his wife at the Planning Commission proceedings.

In his appearance before the Commission, Attorney Bennet began by not only attacking the Commission for recognizing “public access,” but also the entire legal authority of “public access” under Connecticut law. He said that if the Commission in any way recognizes a right of “public access” in its deliberations, “We will oppose you.”

“You are wrong to recognize “public access,” Attorney Bennet said, and he added, “It is unfair to foist public access [upon his clients].”

Bennet then cited case after case, which he said demonstrated that “public access” could not be recognized, because it had no legal legitimacy under Connecticut law. Essex subdivision regulations purporting to grant “public access,” he said were wrong.

In response Chairman Danyliw said to Bennet, “You are challenging the very core of our authority.” To which Attorney Bennet responded, “You cannot hold as legitimate a public access easement.”

Interrupting the litany of cases that Bennet was citing to show that no state law in Connecticut legitimizes “public access,” Chairman Danyliw asked Bennet to put his arguments in writing. In a conversation with Attorney Bennet after the hearing, he said that he intended to write a letter to the Commission summarizing his arguments against the validity of “public access.”

Attorney John Bennet seated after his stand up attack on the legal legitimacy of "public access"

A lawsuit could delay the Foxboro project for years

 It remained an open question as to whether Bennet’s arguments before the Planning Commission, questioning the very legitimacy of “public access,” would ultimately lead to a lawsuit against the Planning Commission. This could be the result, if the Commission were to recognize “public access” in its decision approving the Foxboro Point development.

If a lawsuit were brought, the development of Foxboro Point could be set back for years, as the lawsuit made its way through the courts.

After this contretemps over “public access” was finished, the Commission continued its public hearing in a normal fashion, with speaker after speaker stating that they were against applying “public access,” as part of the Foxboro Point development.

The hedging threat to the new development

Another topic mentioned at the public hearing was to note that the developer had promised to establish a perpetual visual easement that would restrict overly large hedges and other visual obstructions at the development in perpetuity.

Just what tall hedges would look like at the site is demonstrated by the dense, nine foot hedges that are presently in place along Foxboro Road on the other side of the road from the development site. Such tall hedges and other tall obstructions could block the view to North Cove, and of course to the windmill, if they were permitted.

Nine foot, visually impenetrable hedges across the street from the site. A foretaste of things to come?

Essex Land Trust favors “public access” at site     

Essex Land Trust President Bob Nussbaum and Land Trust Acquisition Committee Chairman Paul Greenberg made a presentation that essentially endorsed Bill Reichenbach’s view that the Commission should approve “public access” via a new public pathway from the river to the road, coupled with a pathway along the shore.

However, in an interview after the meeting, Greenberg said that he was reaching out to the developer’s counsel, Judge Terrence Lomme, to see if the Land Trust could reach a compromise with the developer that would be satisfactory to both entities.

At the public hearing the Land Trust representatives noted, “We are neighbors of the Foxboro Point property in that the Land Trust’s Great Meadows area is located just across from North Cove.” Mentioned as well was that if a compromise on “public access” failed at the site, the Essex Land Trust was empowered to accept monies from a developer to acquire an equivalent open space property in other areas of Essex.

As the drumbeat of speakers’ rejecting “public access” continued, one member of the audience said, “Our property is our first priority, except possibly our children.”  She continued, “If you let the public in, it is going to be a pig sty out there.”

Another speaker said simply, “Public access, I just don’t get it.”

There followed a brief discussion about installing docks along North Cove by property owners, and it was agreed that any party who wished to install a dock would have to get Planning Commission approval.

Near the end of the public meeting Judge Lomme made the point that in his opinion, “The developer has offered benefits to the community above and beyond those that are required.”

Chairman polls Commissioners for their views

After the public portion of the hearing ended, Commission Danyliw called on Commission members to express informally their views on the developer’s application. The result was that support for “public access” at the site was underwhelming.

With the applicant’s latest “pocket park” proposal before them, the next Planning Commission public hearing on the Foxboro development is June 14.