Long Island Sound Access Point Investigation Status Report (re-published to keep on Blog)

July 31, 2012

John Donegan, Esq., President, Pine Orchard Association
c/o Gibson & Donegan, P.C.
420 East Main Street
Branford, CT 06405

RE: Long Island Sound Access Point Investigation Status Report

Dear Attorney Donegan:

At the July 9, 2012 meeting of the Pine Orchard Association, it was requested
that this firm provide a written report as to the status of its investigation as to
what “rights”, if any, the Pine Orchard Association (“POA”) has in and to certain access
points to Long Island Sound within the confines of the Association. In as much as some
of these matters are the subject of litigation and/or are still under investigation, our
opinions relative to those matters are subject to change.

By way of background, in the fall of 2011, this firm was asked to assist a subcommittee
of the Executive Board to review the records of the POA and to determine
what interests the POA may have in certain access points. In light of recent prior
investigations relative to this same subject matter, the sub-committee determined that
the first step should be to catalog the results of the prior investigations. In addition to
prior POA investigations, other relevant materials were also gathered and cataloged,
including historical investigations as well as primary source information. During the late
winter of 2011-2012, it became apparent that the POA would likely be made a party in

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report
the then pending Crescent Bluff litigation1. Concerns relative to imminent involvement
in the Crescent Bluff litigation led to the suspension of the sub-committee’s investigation
and this firm’s assumption of the review of the POA materials. We have spent nearly
one hundred hours reviewing the minutes and files of the POA, prior court decisions
and other relevant documents. While the primary focus of this research has been to
help determine and evaluate the POA’s position in the Crescent Bluff litigation, we have
simultaneously investigated the status of the other access ways. We have collected
nearly 700 pages of documents that reference or touch upon these matters. These
materials will be delivered under separate cover. While the investigation to date has
been extensive, it has not been exhaustive and several areas may require additional
investigation depending upon what courses of actions the POA chooses to take.

The following is a summary of our findings based solely upon the above
described review.

1. We have identified nine “access ways” to Long Island Sound within the
confines of the POA: i) two off Island View Avenue; ii) the terminus of Island
View Avenue; iii) the retained land and easement to the South from Island
View Avenue to the breakwater; iv) the terminus of Halstead Lane; v) the
terminus of Crescent Bluff; vi) the terminus of Spring Rock Road and vii) the
extension of Selden Avenue; and vii) Club Park Way (tide gates).

1 On June 7, 2012, 2012 the POA was formally made a party in the matter of Wheeler, et al v. Beechcraft, LLC (HHDCV-
09-5034089).
“Crescent Bluff litigation” shall generally refer to the matters of:
Wheeler, et al v. Beechcraft, LLC (HHD-CV-09-5034089) Trial scheduled April 5, 2012. This action brought by some
interior lot owners seeks, inter alia, to quite title on Crescent Bluff Avenue, including the front lawns.
Paquin, et al v. Saggese, et al (HHD-CV-09-4045467) No trials scheduled. This action seeks, inter alia, to quit title in
the front lawns of some of the property owners along Crescent Bluff Avenue.
McBurney, et al v. Wihbey, et al (HHD-CV-09-5034443) No trials scheduled. This action seeks, inter alia, contribution
for maintenance and repairs to the stairs/seawall.
Saggese, et al v. Cirillo, et al (HHD-CV-06-5008315) Trial scheduled May 6, 2013. This action brought by Barbara
Saggese and Erin McBurney asserts certain tort claims against some interior lot owners for harassment.

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report

2. Four of the subject areas have been extensively researched in the recent past
by very reputable surveyors, to wit:
a. Island View (between numbers 9 and 13 Island View Avenue),
Anderson Engineering completed a survey dated September 1, 2005;
b. Island View (between numbers 37 and 41 Island View Avenue),
Anderson Engineering completed a survey dated September 1, 2005;
and
c. Spring Rock Road, Criscuolo Engineering, LLC complied a report
dated August 31, 2007; and
d. Halstead Lane, Criscuolo Engineering, LLC complied a report dated
August 31, 2007.
3. While the Anderson surveys state that the two Island View rights of way are
owned by the Pine Orchard Association, Inc., after discussing this matter with
Mr. Anderson he could not confirm that record title to these parcels is held by
the POA, as his files did not contain a copy of a deed into the Pine Orchard
Association, Inc. Mr. Anderson stated that he would review his files to see
if he could make such a determination from his file or whether or not a title
search would be required. Even if record title to the ROWs is not held by the
POA, the POA likely has a claim of ownership by way of adverse possession
based upon its longstanding maintenance and improvements made to these
areas. Mr. Anderson also reported that the ROWs are depicted on the
original Wallace subdivision map (Anderson survey note 1) and the deeds
within that area uniformly refer to that map. Based upon Mr. Anderson’s
findings, at a minimum, those lots shown on that Wallace subdivision map
have an implied easement of use because the rows are depicted on the
original map. See McBurney v. Cirillo, 276 Conn. 782, 799 (2006).
4. To our understanding there have been no disputes with respect to the Club
Park Way access point or the end of Island View Avenue, both of which
are owned and/or claimed by the Town of Branford. As to Island View, we
have not investigated whether or not the road was formally dedicated and
accepted or whether or not such claim is established through long standing

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report

maintenance and improvements. The Club Park Way access point, which is
owned by the Town, is shown on Accessory’s Map H09, Block 6, Lot 17.
5. In late 1989, the POA deeded to the Pine Orchard Yacht and Country Club
(“POYCC”) fee title interest to the breakwater (v.483, p.266 of the Branford
Land Records), retaining the rights to traverse the breakwater and to attach
mooring lines to the breakwater as well as ownership of a portion of the land
between Island View Avenue and the breakwater. Additionally, as part of the
transaction, the POA also granted to the POYCC an easement to traverse the
property between the southwest end of Island View and the breakwater. (v.
483, p. 268 of the Branford Land Records).
6. The paved portion of Halstead Lane is likely to be deemed a public road.
While the Criscuolo report relative to Halstead Lane concludes that certain
property owners on the West side of Halstead and #253 Pine Orchard Road
have deed rights to traverse the “road” to the water, it may well be that
the same interests accrue to those on the easterly side as that road was
depicted on the applicable subdivision map (Book 2, page 6) and referred
to in the conveying deeds. See McBurney v. Cirillo, 276 Conn. 782, 799
(2006) (Subdivision map showing right of way gives rise to easement). An
opinion as to record title to the road was not provided in the report and
the determination of record ownership has not otherwise appeared to be
determined. The report, however, does note that there is no evidence that
record title to the roadway was transferred out from TC Bradley or Sarah E.
and Eckford Davis, the original road owners; thus implying record title to the
roadway was retained by them.
7. Spring Rock has been determined to be a public road and ownership of legal
record to the road, including its extension (two rods in width) to Long Island
Sound is held by the Town of Branford. (See also Map 3179 on file in the
Branford Town Clerk’s office in addition to the Criscuolo report referred to
above). You have recently brought to our attention a dispute relative to rights
to traverse the walkway on top of the sea wall to the West of Spring Rock

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report

Road. Since we were unaware of this issue we have not examined the same
at this time, but are prepared to do so.
8. The Crescent Bluff access point is currently the subject of litigation. There
are three Connecticut Supreme Court decisions which address the rights of
the individual property owners on Crescent Bluff, but none concerning the

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report

matter of public access.2 (We have not investigated any individual’s claimed
right of way.) The issue as to whether or not Crescent Bluff is a town road,
and the extent of the limits of the road, will be determined in the matter of
2 McBurney v. Cirillo, 276 Conn. 782 (2006)
Background: Lawn parcel owners brought quiet title actions, alleging trespass and adverse possession and seeking
declaratory and injunctive relief. Neighbors counterclaimed for prescriptive easement and raised same claim by way
of special defense. The Superior Court, Judicial District of New Haven, Arnold, J., entered judgment for lawn parcel
owners in part and for neighbors in part, and all parties appealed.
Holdings: The Supreme Court, Borden, J., held that:
(1) notice to other subdivision lot owners in companion case was sufficient such that trial court had jurisdiction to
render declaratory judgment;
(2) plan, which was incorporated into deed, implied an easement in favor of rear lot owners that allowed use of lawn
parcel;
(3) references to plan in the chain of record title constitute a specific identification to the recorded title transaction that
created the easement such that lawn parcel owners took title to the lawn parcel subject to the implied easement;
(4) there was no privity between subdivision neighbors and prior residents such that neighbors had a prescriptive
easement over lawn parcel;
(5) evidence was sufficient to support finding that there was no mutual mistake as to agreement in which neighbors
agreed to release any claim to “all” interests in lawn area;
(6) neighbors who signed agreement thus lacked standing collaterally to attack probate court orders which permitted
transfer of lawn parcel; and
(7) orders which permitted property transfer of lawn parcel did not adversely affect implied easement in lawn parcel
such that neighbors who did not sign agreement had standing to collaterally attack orders.
Affirmed in part, reversed in part, and remanded.
McBurney v. Paquin, 302 Conn. 359 (2011)
Background: Lawn parcel owners brought quiet title actions, alleging trespass and adverse possession and seeking
declaratory and injunctive relief. Neighbors counterclaimed for prescriptive easement and raised same claim by way
of special defense. The Superior Court, Judicial District of New Haven, Arnold, J., entered judgment for lawn parcel
owners in part and for neighbors in part, and all parties appealed. The Supreme Court, 276 Conn. 782, 889 A.2d
759, affirmed in part, reversed in part, and remanded. On remand, the Superior Court determined scope of implied
easement over lawn, and parties appealed and cross-appealed.
Holdings: The Supreme Court, Rogers, C.J., held that:
(1) implied easement granted right-of-way to beach but not right to recreate on lawn;
(2) evidence of use of lawn could be limited to that occurring near time of creation of easement; but
(3) no evidence supported finding that easement included right-of-way to access areas other than beach.
Affirmed in part and reversed in part.
Fisk v. Ley, 76 Conn. 295 (1903), This was an action for an injunction relative to the construction of a seawall
and regarding of the slope at the end of Crescent Bluff Avenue. The Supreme Court upheld the issuance of the
conjunction held, inter alia, “and annexed to every lot [on Crescent Bluff Avenue] a right to use of the avenue and
lawn, to go over them to the sound, and to use the strip of beach between the foot of the bank and the water for all
such purposes.”

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report

Wheeler, et al v. Beechcraft, LLC. As previously noted the POA has been
made a party to that matter as the POA may claim an interest in the Crescent
Bluff road way (i.e. the “Avenue”) and/or the access way (“i.e. the “Lawn) to
the beach/sea wall. At this time we are not aware of any claim that record
title is in the name of the POA relative to the areas in question. There are
references within the POA records to maintenance, repairs and improvements
being undertaken by the POA to the Crescent Bluff access way. In fact the
same was acknowledged by the Connecticut Supreme Court in the matter of
McBurney v. Cirillo, 276 Conn. 782, 766 n.11 (2006). Thus, the interests of
the POA, if any, are likely to be based upon a claim of prescriptive easement.
We are in the process of completing our factual investigation of this matter
and will be entering into discovery with the other parties to the litigation.
Since the matter is in litigation we recommend that any discussion of this
matter occur with the Executive Board in executive session so as to preserve
the attorney client privilege.
9. With respect to Selden Avenue, there is a dispute between the owner of 1
Selden Avenue and the Town of Branford as to who holds record title to the
access way. We have made only limited investigation into this matter and
have not formed an opinion as to who holds record title at this time.
We have not uncovered any documents which would support a claim
that record title to any portion of the Selden Avenue access way is held
by the POA. There are, however, references within the POA records to
maintenance, repairs and improvements being undertaken by the POA to
the Selden Avenue access way. Like other areas within the association,
these improvements may well give rise to the establishment of a prescriptive
easement in favor of the POA. We are also aware that individual lot owners
on Yowago Avenue, Grove Avenue, Ozone Road and Selden Avenue may
have disparate claims to deeded rights of way over the subject area. We
have not investigated any individual owners’ claims of rights of way. Since
the ultimate resolution of the determination of the parties interests, including
those of POA, in and to the access way may have to be determined through
the litigation, we recommend that any discussion of this matter occur with the

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John Donegan, Esq.
July 31, 2012
RE: Long Island Sound Access Point Investigation
Status Report

Executive Board in executive session so as to preserve the attorney client
privilege.
Based upon the foregoing we believe the following additional work is required to resolve
the unresolved issues:
1. The POA should continue to pursue and represent the interests of the
Association’s members in the Crescent Bluff litigation. The course, position
and litigation strategy to be discussed with and determined by the Executive
Board on an ongoing basis as the matter progresses.
2. The Executive Board should discuss and determine what, if any position it
should take with respect to disputed points of access such as Selden Ave.
and remaining areas of the old promenade such as the the walkway to the
west at the end of Spring Rock Road and Crescent Bluff Avenue.
3. Should the Executive Board desire to conclusively resolve ownership of the
two ROWs off Island View and/or Halstead Lane, it in executive session,
should consider whether or not to commence quite title actions.
Thank you for permitting us to be of assistance to you in this matter. As always, I
am available to respond to any questions you may have.

Very truly yours,

Peter A. Berdon