Complex dispute over right-of-way

NORTH CANAAN — A property use issue that seemed resolved at the Dec. 10 Planning and Zoning (P&Z) meeting may be far from that. A lawsuit has been pending since last March.Residents on Barracks Road filed a complaint of two non-conforming businesses using a right-of-way there for trucks that are too large for a dirt access road. Joseph and Darlene Webb and Alan and Tammy Fleming sought enforcement by the zoning enforcement officer against a nonconforming business that they say was putting increased traffic on the right-of-way, causing damage and noise and occasionally blocking access in an attempt to maneuver trailers. The right-of-way parallels the railroad tracks there, and is accessible only over a railroad grade crossing. The complaint noted a 2004 zoning permit issued for a private garage as part of a single-family home use for the property at the end of the access road.Richard Bunce Jr., his wife, Caren, and their son Jesse live there. Bunce Construction and Jesse’s Lawn Care both operate out of the property. At the meeting, P&Z Chairman Steve Allyn explained he had heard from Joseph Webb earlier that day, stating he wanted to withdraw the complaint. Allyn requested the action in writing, and read a letter received that afternoon from Webb.Bunce asked that the businesses be recognized as pre-existing nonconforming operations that would be allowed in the residential-agricultural zone. After discussion and the submission of numerous letters as testimony that both predate the 1999 creation of zoning regulations in North Canaan, the commission voted unanimously in favor of the recognition.Plans that show the current scope of each business will need to be filed in Town Hall. These will be used as a baseline for determining if a future expansion is enough to negate its approval to operate under nonconforming conditions.Webb told The Lakeville Journal he was shocked to hear from his attorney that P&Z had resolved the issue while a lawsuit was pending. Allyn had mentioned that there was a right-of-way issue that would not be discussed that evening because it was “in counsel.”It was at the advice of his attorney that Webb withdrew the complaint. The thinking was that the lawsuit, in which Bunce is suing the Webbs, had to be resolved first.Bunce is suing over the right to use a right-of-way established over the easternmost 13 feet of the Webb property.When a grant of right-of-way was drawn up in 1981, it was to formalize a use that had existed for decades. There are several homes along that right-of-way. Without that access to Barracks Road and Route 7, their properties would be landlocked. The right-of-way became part of the land deeds.But a mistake was made in establishing part of the easement on railroad property without the owner’s consent. The right-of-way on railroad property has been used since, but could be restricted at any time. That makes access over the Webb property crucial.In an effort to keep the trucks they say should not be using the right-of-way from running up over their lawn, the Webbs, who have lived there for 17 years, installed a fence. The suit claims the Webbs’ interference with the deeded access creates a substantial risk for Bunce and the other residents. Bunce is seeking a judgment in Litchfield Superior Court for an irrevocable right-of-way over the Webb property. Webb said he plans to take issue with P&Z’s limited consideration of the matter, which appears based only on letters from residents and First Selectman Douglas Humes that speak to the two businesses being in operation before zoning. No one has come out to inspect the issues at the site, which were documented in a series of photos, Webb said.In the withdrawn complaint, (viewed previously by The Lakeville Journal) vehicles and equipment registered to the business are listed on tax records as being at 600 W. Main St. The residence is also listed at that address. Webb said Bunce had an issue that caused him to lose that access to his property from West Main Street.