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Attorney Richard Colbert (standing) a Pine Orchard resident who does not support the Pine Orchard Association's endorsement of the Town's use of eminent domain in the matter, speaks to the Board of Selectmen on June 5. Pam Johnson/The Sound | Buy This Photo)
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An unusual situation in which one property owner has claimed and retained full ownership to the access road used by her neighbors may be about to change. With a June 5 unanimous vote to “initiate condemnation proceedings,” Branford’s Board of Selectman (BOS) took the first step toward using eminent domain to take a private road, Crescent Bluff Avenue, as well as an adjacent grassy stretch giving access to Long Island Sound at the south end, and make them public.
By town charter, three other Branford government boards will weigh in. Eminent domain proceedings also need to follow a state statutory process.
Subdivided into 36 building lots in the late 19th century, the avenue and lawn were used as common property until 2006. The town improved the road through the years with paving and storm drainage maintenance and accessed it for installation of utilities include sanitary sewers infrastructure.
Currently, Crescent Bluff Avenue is the private property of a single entity, Beachcroft LLC, owned by Barbara Saggese of 1 Crescent Bluff Avenue, a resident since 2006. About six years ago, a Connecticut Superior Court ruling upheld Beachcroft’s title of ownership of the property. Beachcroft also holds a title to the lawn area at the south end.
Currently, home owners of other properties on Crescent Bluff Avenue have right of way to use the street to access their homes.
The BOS vote on June 5 follows years of court proceedings between residents and Beachcroft. An April 2019 letter from the Pine Orchard Association (POA) executive board to the BOS mentions the litigation and states the POA’s strong support for eminent domain proceedings to be undertaken by the town. Cosgrove noted the letter had been received and entered into the record.
In part, the letter states, “The avenue and lawn areas have been the subject of decades-long litigation, including a number of pending cases involving the access to the beach and Long Island Sound, ownership of the front yards abutting the paved roadway, [and] rights of the public to use the roadway. This ongoing conflict has impeded sales and depressed the value of Crescent Bluff Avenue homes, created discord within the community causing the unnecessary use of the town’s police resources to respond to trespass complaints, and forcing [the] homeowners to expend hundreds of thousands of dollars in attorney’s fees and litigation costs.”
A Multi-Step Process
First Selectman Jamie Cosgrove noted on June 5 that the BOS vote was part of a “multi-step” town approval process that also involves proceedings required at the state level, for which the town has hired attorney Ted O’Hanlan of Robinson & Cole.
On June 5, O’Hanlan brought a recommendation to proceed with eminent domain to the BOS.
“The town has a long interest in that road. It’s paved it, it’s maintained it, [and installed] sanitary sewer drainage structure underneath it. It’s been included for years in state lists for town road aid, so this route [seizure by eminent domain] provides certainty and avoids undue expense,” said O’Hanlan.
He said the move makes sense for Branford, rather than to appeal the court ruling on the title holdings.
“The entire process [is] to enable the town to do what it perceives to be in its interest to protect the people along the road, the public access to the Sound, and in a way that doesn’t involve the uncertainty [and] the expense of litigation [with] the possibility of an adverse result,” said O’Hanlan.
A discussion regarding selling the road to the town has taken place with no resolution, and the state process also requires the town to meet with the property owner to discuss the value of the property.
“We’ve already done that, we’ll do it again” for the state process, said O’Hanlan. “If we can’t work it out, statute requires you to get two individual appraisers, which we’ve lined up, [and] determine value. If accepted, the amount becomes [Beachcroft’s]. If they don’t like it, it’s an appeal process through the court.”
Crescent Bluff Avenue is unique from many other private roads in that title is held by an LLC controlled by a single individual, instead of a property owners’ association, O’Hanlan said.
“And so the idea of taking it back by eminent domain not only avoids the expense and uncertainty [of appeal], but there’ll be no strings attached,” said O’Hanlan.
He said making the street public will assist in the “interest of preserving value of homes,” while giving use and access to the public.
He also pointed out there have been instances where the town has come up against signage and access issues on Crescent Bluff Avenue.
“We’ve been able to work amicably with the owner, but again, any time you’ve got a single owner with their own interests, distinct from the neighborhood’s interest in mind, it makes it that much more problematic,” said O’Hanlan.
A resident of 29 Crescent Bluff Avenue, Robert Wheeler, noted for the BOS on June 5 that, back in 2014, Beachcroft LLC had filed a motion for contempt against the Town of Branford “for giving the gas company permission to install a gas line into the residence at 37 Crescent Bluff Avenue,” in which Beachcroft demanded a fine of $5,000 plus court costs for the town action, according to Wheeler. Wheeler also noted the court denied Beachcroft’s action on Sept. 9, 2014.
Wheeler said he brought the 2014 item to the attention of the BOS to support his claim that it was “an action on Beachcroft’s part to justify total sovereignty over the street.”
Following the June 5 vote by the BOS, the “initiation of condemnation” question was next set to go before the Representative Town Meeting (RTM) on June 12 (8 p.m., Branford Fire House, 45 North Main St.). The RTM revised its June 12 meeting agenda on June 3 to add an item “to consider, and if appropriate, approve initiation of condemnation proceedings with respect to Crescent Bluff Avenue.”
Another town entity that needs to be involved in the initiation process, the Planning & Zoning Commission (PZC), has a “referral for condemnation proceedings for Crescent Bluff Avenue” presentation on its Thursday, June 13 agenda (7 p.m. at Canoe Brook Senior Center). The PZC referral to town, which is not a vote, would be based on whether or not the commission finds the taking is consistent with the Town Plan of Conservation and Development.
The fourth and final town entity that will ultimately become involved, the Board of Finance, would vote on whether to approve compensation costs the town would pay the property owner for the land.
The pace of the town process was noted by Beachcroft LLC’s attorney, David S. Hardy (Carmody, Torrance, Sandak & Hennessey, New Haven).
“My client just received notice of this particular agenda yesterday afternoon, and asked me to make a statement in opposition to this initiation,” said Hardy in his opening statement to the BOS on June 5.
He said the provision for the taking of the grassy area was also news.
“Tonight is the first time that we have heard that there is a proposal [to] take the lawn,” said Hardy, noting the town can instead acquire an easement to maintain the pipe beneath it.
Hardy also asked, “Why is the point of access to Long Island Sound, and this lawn, as opposed to any other points of access, why is this particular property being singled out?”
A resident of a road that parallels Crescent Bluff Avenue, attorney Richard Colbert of 2 Halstead Lane, also questioned why the street and lawn would be taken for public use.
“The taking also serves no public use for this town. It doesn’t give access to anything that’s commercial [or to] schools, hospitals, or otherwise, which is what the law in the statutes require,” said Colbert. “Moreover, [there is] no logical purpose. Crescent Bluff is paralleled by [public] Spring Rock Road, which is hardly overburdened by the public coming in to use the beaches. We have a road that’s already public that the town people can use if they so desire.”
A Slippery Slope?
Branford’s most highly visible modern eminent domain proceeding took place in January 2004 during another administration, and didn’t end well. In 2007, a civil jury found the town had wrongly seized the 77-acre Tabor parcel, directing Branford to pay $12.4 million to New England Estates, a developer that had an option to build on the site.
“That the town is considering heading down this road, a road it has been down before, a road that led to Tabor, we believe, is irresponsible,” said Hardy, speaking to the BOS on June 5. “And if the town does decide it wants to move forward with eminent domain, Beachcroft stands ready to respond in the same respect to Tabor.”
Hardy said, instead, discussions should take place.
“Beachcroft is open to discussions [and] those discussions should not take place under threat of eminent domain,” he said.
Hardy voiced his client’s opposition not only to the town’s move toward eminent domain, but to the endorsement of the POA to have the town take the action, saying, “in our view, this is a completely improper use of the eminent domain power. What we have here is the town singling out this particular road for confiscation at the urging of a small group of citizens [and] in our view, using public power to attempt to resolve decades of private litigation in which this group has been unsuccessful, is an abuse of that power.”
The POA letter, dated April 26, states the POA executive board endorses “any and all necessary action that elected officials [can] immediately take, including, but not limited to, the exercise of eminent domain powers.”
The letter was also roundly refuted by Colbert.
“I’m appalled [POA] sent a letter to this town asking them to take a road within our association by eminent domain,” said Colbert, speaking to the BOS on June 5. “A simple review of [POA ]charter and by laws reveal a breach of [POA] obligations to its residents and members of association.”
“The litigation on that street should not be resolved by strong arm tactics of a Pine Orchard Association that clearly has no confidence in their law suit,” nor should the town step in to resolve it, Colbert continued. “It should be resolved as they are trying to resolve it right now; through mediation efforts with a Connecticut Supreme Court Judge [and] if that doesn’t work, it should be decided in a court of law that makes a determination based on facts [where] everyone has an opportunity to present evidence.”
Cosgrove said that, while the POA letter has been entered into the record, the town is acting due to its own position on the matter and not on behalf of the POA.
“This has been a long-standing issue and a long-standing position for the town,” said Cosgrove on June 5.
Cosgrove had also made a similar statement earlier in the meeting, saying, “There’s many reasons it’s in our interest to ensure that Crescent Bluff Avenue is public road. That has been the town’s position for many decades, if not close to a century. There’s many reasons why we should ensure this remains public access.”
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