February 1, 2023

Planning Commission Approves Foxboro Point Plan, with a “Public Access” Corridor

The beautiful view of the undeveloped Foxboro Point property

The Essex Planning Commission at its recent August 23 meeting approved a New York City developer’s plan to develop seven new home sites on eleven acres of land at Foxboro Point in Essex. However, the Commission’s approval came with one big caveat.

That is, that the developer must acquiesce to a “public access” corridor running across his property, from Foxboro Point Road down to the North Cove below. Furthermore, this “public access” path would run between the sixth and seven housing sites of the luxury development.

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

“Public access” means what it says. In this case it would mean that the general public could traverse along a path from the road to the water without anyone shoeing them away.  Picnics, and, theoretically, canoe launchings, sun bathing and even swimming at the end of the access path would be permissible.

However, realistically, canoe launching or swimming from where the “public access” trail meets the waters of North Cove is unlikely, as the water at that point is far too shallow to swim in, or to launch a canoe from.

No Permanent Buildings Permitted on Corridor

Also, no permanent building structures would be permitted on the corridor, and public activity could be limited to the daylight hours. It is also envisioned that the developer might deed the “public access” portion of his property over to the Essex Land Trust, or other third party, to manager. This is, of course, all dependent on the developer agreeing to the “public access” component of the Commission’s approval.

The shape of the “public access” path in the Foxboro development is somewhat contorted, in that roughly the top half of the path is a generous 75 feet wide, whereas the bottom half of the corridor narrows to 25 feet in width until it reaches the waters of North Cover.

Putting it another way, starting at Foxboro Point Road, the access path would be 75 feet wide for a length of 200 feet. Then, at its roughly middle point, the path’s width would shrink to 25 feet for another 260 feet, until it reaches North Cove.

These dimensions of the access path from the road to the water were provided by John Guskowski , Essex Town Planner.

Developer Has Until September 21st to Decide

New York City developer Frank Sciame has until September 21st, according to Guskowski, to accept or reject the Planning Commission plan with its “public access” component. Should the developer not accept the Commission’s approved plan, he could challenge the “public access” portion of the plan on legal grounds in court, or he could simply walk away from the whole venture.

The Essex Planning Commission decision to attach a “public access” requirement to its approval of the developer’s plan appears to have been made pursuant to the Town of Essex Subdivision Regulations, including Sections 5.8 and 6.1.

Constitutionality of “Public Access”Questioned

 However, at one of the proceedings during the Commission consideration of the Foxboro development, an attorney hired by one of the development site’s surrounding home owners, vigorously challenged the constitutional authority of Essex’s Subdivision Regulations regarding “open space” dedicated to “public access.”

However, because of the time that it would take to challenge the Town’s “open space” regulations in the courts, this might not be a choice that developer Sciame would want to make.

The proceeding of the Essex Planning Commission on August 23, according to press reports, was five hours long and entailed a one hour of closed executive session. However, there remains one ancillary question related to this proceeding.

Attorney Terrance Lomme’s Advice Is Crucial

The advice that Attorney Terrance Lomme gives his client, Frank Sciame, as to how to proceed with his application is crucial. For one thing, Lomme might acquaint Sciame with the painful history of the nearby Preserve development in Old Saybrook.

Probate Judge Terrance Lomme acting in his capacity as a counsel for the developer Frank Sciame

The developers of the Preserve have been trying to get their development underway for well over a decade, and there is yet not a single spade in the ground for this ambitious 1,000 acre project. In fact, the Preserve developer has now been reduced to trying to develop a small portion of the property that it owns on Essex’s Ingham Hill Road, and even there, the developer is being rigorously challenged by a deep pocket Essex businessman and homeowner.

The point is that ultimately the wisest choice for developer Sciame might well be to make a virtue out of necessity and accept the Planning Commission’s decision. Certainly, there could be creative ways to shield the “public access” corridor from its luxury home neighbors, especially for those living on the two parcels that are next to the access corridor.

Dense flowering hedges might be one such option. Furthermore, it is highly unlikely that there will be jostling crowds using the “public access” pathway. Most likely on weekends a few souls might want to walk down the hill from Foxboro Point Road to the waters of North Cove just to take a look, but that would be about the size of it.

Truthfully, there are many other, better places to see the water along the Essex shore than this.

Finally, Sciame, has said that he, himself, might want live in one of the new houses that he is developing on Foxboro Point. He might even want to take one of the properties beside the “public access” pathway, just to show that it is not so bad after all.