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01/30/2020 11:00 PMIn a lawsuit initiated in 2017, several Crescent Bluff Avenue residents are requiring Branford's selectmen to formally establish privately-owned Crescent Bluff Avenue as a public town road -- or show cause why the Town cannot. This week, a court-assigned committee has been receiving citizens' input on the matter, during public hearings held in Branford.
The committee, made up of three attorneys, Sharon Wicks Dornfeld (Danbury), Neil Marcus (Danbury) and Monte Frank (Pullman & Comley, Bridgeport), has been overseeing five public hearings this week at Branford Fire Headquarters, which began Tues. Jan. 28 and will continue through Saturday, Feb. 1 starting at 10 a.m.
The case, listed as "Robert G. Wheeler, et al vs. The Selectmen of the Town of Branford (to wit James Cosgrove, Joseph E. Higgins Jr. and Jack Ahern)" was filed in New Haven Superior Court in October, 2017. The selectmen's names are required by statute; however it is the Town of Branford that is the defendant.
The statute, CGS 13a-63, revolves around the premise that people may petition the Board of Selectmen (BOS) to create a road; and if the road isn't created, a procedure exists which allows the people to ask the court to appoint a committee of three "disinterested persons" to hold a public hearing on whether it serves the public interest and convenience to have the road.
According to court documents, the case's seven plaintiffs reside at four of the 17 homes on Crescent Bluff Avenue, which is located in the Pine Orchard area of town. They are listed as Robert and Celia Wheeler, 29 Crescent Bluff Ave.; Charles Dimmler III and Angela Rossetti, 30 Crescent Bluff Ave.; Dean Leone and Tina Mannarino, 41 Crescent Bluff Ave. and Antoinette Verderame, 21 Crescent Bluff Ave.
The dispute is one among several court cases which have arisen over the ownership of Crescent Bluff Avenue over the past 12 years. The legal wrangling began after one resident, Barbara Saggese of 1 Crescent Bluff Ave., formed Beachcroft LLC in 2006 and acquired, by quit claim deed, property ownership of the road and of a strip of lawn alongside the waterfront which residents had historically used as an access point to Long Island Sound.
Since the road and lawn became private, residents have raised concerns and sought resolutions in court. Security cameras are in use by Beachcroft; but as Beachcroft has noted in past statements, it has never placed physical barriers on Crescent Bluff Avenue and is not legally allowed to do so. Beachcroft has also noted that, in 2011, the Connecticut Supreme Court held that Crescent Bluff Avenue residents have the right to pass and repass over the paved portion to access intersecting Pine Orchard Road, and also that these residents have the right to pass and repass over the lawn to access the water between the hours of 6 a.m. and 9 p.m.
While the court also upheld a trail court's finding that Crescent Bluff Avenue is not a public highway, the current plaintiffs argue, in part, that the Town had maintained the road for decades and has also certified annually to the state, since at least 1950, "...that Crescent Bluff Avenue is a town road of the Town of Branford and that the Town has accepted legal liability and maintenance responsibility for Crescent Bluff Avenue," further noting the Town had issued permits for utilities and repairs "for years without objection of any private owner." The plaintiffs also point to the historic use of the avenue by residents – its lots were established in the late 19th century -- as public way and for access to Long Island Sound.
The Sound listened in on Wednesday, Jan. 29 as the committee heard from four citizens, including one who also shared a letter from resident who couldn't attend. Additionally, information regarding the formation of the Pine Orchard Association (POA) and map of the area was submitted by an attorney representing POA as an interested party in support of the road being public. Three statements sent in by residents were also read into the record.
The majority of in-person and written statements supported the road becoming a public street and lamented the loss of a type of care-free use of the area, with several mentioning no longer walking the area's waterfront "loop" with access from Crescent Bluff Avenue, which had been enjoyed by generations. Some brought up legal fees expended, warnings received by police at their door for reportedly having trespassed on private property, and the potential loss of real estate value of their property due to the ongoing issues.
Pine Orchard resident Naill Ferguson of Spring Rock Road, who grew up in the area and is now raising children there (he also noted he had served six years on the board of the POA, with those terms now expired), said the conflicts on Crescent Bluff Avenue have dragged on for "an incredibly long time," and that he hoped the issues would be resolved "in some agreeable fashion" by either negotiation among all parties or by court decision. He also wanted to emphasize his view that the Town should not use eminent domain to take the lawn in question.
"I just don't think this is a country where the Town can go and just choose to take land for that reason. Hearing that as a possibility would be a very concerning issue to me," said Ferguson. "So I think the Town should be very cautious on that front."
Last year (June 2019) Branford's BOS initiated; then later withdrew, the process to begin the start of condemnation proceedings to take Crescent Bluff Avenue and the lawn by eminent domain. At that time, Beachcroft's attorney pointed out that one of the arguments being made by the town, needed access to a drainage pipe beneath the lawn, was already granted to the Town by easement. Members of the Representative Town Meeting (RTM) and Planning and Zoning Commission (PZC) heard initial input from Town and Beachcroft attorneys (the PZC also heard input given by Saggese, as well), before the Town withdrew its request (July 2019), in order to resume negotiations between the parties.
Since the 2017 suit was first filed, several interested parties have been added among the defense, including Saggese and Beachcroft LLC as well as 6 Crescent Bluff residents Roger Lowlicht and Kay Haedicke. As with all litigation, the issues at hand can also be resolved through private negotiation among all parties. Any final resolution negotiated by the Town would require public review and ratification by the Representative Town Meeting (RTM).
Meanwhile, the court-order committee process to reach a resolution will continue. At press time for this story, the most recent update from the committee was a statement, submitted January 29, 2020. The statement proposes four future dates for presentations by the parties in the suit (10 a.m. – 4 p.m. at Branford Fire Headquarters, from Feb. 25-27 and on March 4, 2020). Those presentations would be open to the public. The committee did not anticipate accepting public comments beyond this week's final hearing date of Feb. 1; although written statements would be accepted from non-parties, i.e. the public, through the end of the parties' presentations (March 4).