Lawyers have been arguing over the rights of a group of Branford homeowners to use a grassy strip of lawn overlooking Long Island Sound since the 1880s. To the chagrin of waterfront homeowners, residents who live further inland have used the grass not only as a passageway to the beach, but as a public park of sorts.
In considering what, if any, activities are allowed on the grass in the private community, the courts have looked to the original parcel map. The 35-home development in the Pine Orchard section of town that was created by Ellis Baker in 1885, and the question of access has gone to the Connecticut Supreme Court three times.
But the issue remains unresolved.
Since 2006, Daniel Klau, a partner with McElroy, Deutsch, Mulvaney & Carpenter in Hartford, has been representing one of four waterfront owners trying to limit permissible activities on the lawn.
In the late 1990s, the client, James McBurney, filed a lawsuit against several other families in the community to keep them from using the grassy strip for barbecues and parties.
“It’s a long-running saga,” Klau said.
To date, the waterfront property owners never tried to bar their neighbors from crossing the 45-foot-wide waterfront lawn at the end of Crescent Bluff Avenue to get to the beach. “We have always agreed that the lot owners could cross over the center of the lawn to the stairs leading to the beach,” Klau said. “We have argued, however, that they cannot use the center piece of the lawn, or portions of the lawn in front of the waterfront lot owners homes, for picnics and barbecues, etc.”
Last May, Klau’s clients won a partial victory when Superior Court Judge William Bright rejected a renewed effort by the inland neighbors to have part of the case reargued. Bright ruled in a partial motion for summary judgment against Celia Wheeler and several other nonwaterfront homeowners who sought in a new lawsuit to have Crescent Bluff Avenue deemed a public way, which they suggested might entitle them to use the property for more than crossing to the beach.
Several years ago, Klau’s client filed a lawsuit that pitted neighbor against neighbor. The case, McBurney v. Cirillo, went to trial in New Haven in 2002 before Superior Court Judge Richard Arnold. Over McBurney’s objections, Arnold found that owners of inland lots did, in fact, have a right-of-way to Long Island Sound by way of the lawn.
The Supreme Court was then asked to consider that case. It cited an 1885 map as evidence that inland homeowners were permitted to use the lawn as a right-of-way. The court said the fact that the right-of-way existed in the original map entitled the inland homeowners to an “implied easement.”
But the Supreme Court was not persuaded by the notion that these homeowners could do whatever they wanted on the grassy lawn. “They can use it to get to the beach, and to get off of the beach, that is all,” the high court ruled.
In addition, the justices upheld a lower court decision restricted the walking route backlot property homeowners could take to the beach. They also restricted the hours that the right-of-way could be used to between 6 a.m. and 9 p.m.
Klau said his clients were pleased with the Supreme Court ruling, only to be faced with the pending lawsuit in which the nonwaterfront property owners are seeking to take adverse possession of the waterfront parcel by claiming the lawn was intended to be public.
Wheeler’s lawyer, Peter Berdon, did not return a call for comment. According to court records, Wheeler is suing the group of beachfront homeowners. They new plaintiffs claim they are not bound by the previous Supreme Court decision because they were not parties to that litigation.
Klau, however, argues that Wheeler was invited to join in that lawsuit. “What I want for my clients is peace and finality,” he said. “We thought when the Supreme Court issues its decision in early 2012 that we had found that peace and finality and we were mistaken.”
A hearing date has not been set on Wheeler’s remaining claims.•