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Groton council weighs abandoning rights to road on the Mystic River

I will note right up front that I am not a lawyer.

But I would also argue that it doesn't take much of a legal genius to come to the conclusion that the Town of Groton has a legitimate claim to a historic right of way that runs along the Mystic River, right through a downtown marina that has built over and consumed it.

Indeed, it is clearly labeled on current state Department of Energy and Environmental Protection maps that declare it as a public right of way through a working boatyard: "In accordance with the May 19, 1987 approved site plan and coastal area management site plan, the public has a right to pass and repass over this property."

And yet the town staff, abetted by a hired legal gun, is trying hard to convince the Town Council to abandon its historic rights to the waterfront at Fort Rachel Marina.

The council agreed at a recent meeting to send a town delegation to visit with the owners of the marina and ask them, pretty please, would they allow the public to have access to their waterfront.

Only two councilors, Aundre Bumgardner and Portia Bordelon, refused to go along with this apparent abandoning of the town's legitimate rights, urging that more research be done before seeking what seems like it would be an obvious no from the marina owners.

I was aghast, watching from home, at the way Councilor Bordelon was summarily dismissed and gaveled down as she pressed for more research on such an important matter.

This is only the latest apparent attempt by the town to abandon public coastal access in Mystic.

Town Manager John Burt recently told me the town would not replace a public access sign that had gone missing at a gate on a dock at Steamboat Wharf condominiums because he said none had ever existed there.

The town did finally replace the missing sign after public access advocate Richard Fitzgerald of Mystic produced a picture of it. But Burt later mischaracterized the situation to town councilors, suggesting it was state-required access, not the town's responsibility.

The reason the public has access there, and the manager of a shoreline town should know this, is that the town conditioned its approvals for the entire development, according to coastal resources state law, on the owners providing that access.

A previous longtime town manager was very proud of the extensive Mystic public access created by use of coastal management laws in the granting by the town of permits for non-water-dependent developments on the shoreline.

The former town manager used to lead tours along the public access walkways that the current town manager seems so reluctant to maintain.

Indeed, the public access across the Fort Rachel Marina was specifically required in a May 1987 permit granted by the town Planning Commission, which ordered specifically: "A note be put on the plan stating the public has a right to pass and repass over the property."

The motion, which passed unanimously, followed lengthy discussion, according to minutes on file, in which town officials brought up references in the property deed that refer to a "highway" that runs north and south along the river.

The owner at the time acknowledged, according to the minutes, the right of the public to cross the property and said he didn't have a problem with it.

Attorney Eric Callahan, who recently produced an opinion on the matter for the town, provides more detail about that road along the river through what is now the marina. He even found a signed 1970 affidavit in land records from a neighbor there who said the owners of her house had been using the road in question for decades.

The attorney also said the road was never formally accepted by the town and you would need an opinion from a court before putting up public access signs.

If that's the case, so be it. Sometimes you have to go to court to secure your rights.

There's lot of evidence in land records of a public right of way there. Indeed, there is a sworn affidavit saying it was used as a road for decades. A previous owner acknowledged it in a public hearing for permits which were finally granted contingent upon public access.

Back when Groton had leadership on public access, the town manager used to lead public tours on the right away across the marina to the railroad tracks and the views of the broad sweep of the Mystic River winding its way toward the sea.

This is the opinion of David Collins.

d.collins@theday.com

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