New Haven Independent

In a lively but acrimonious three hour meeting, the lawyer, James W. Bergenn of Shipman & Goodwin in Hartford, met the town’s residents, answered their questions, and told them that regardless of what they were thinking back then, there was now new evidence they should consider carefully. He urged the town to settle the case rather than face trial because if the town loses, it could face huge monetary damages. Some RTM members viewed Bergenn’s words as a scare tactic.

In the past, the town’s Board of Selectmen, Board of Finance and RTM had all voted unanimously to seize the parcel because of possible contamination. The 77 acres abuts the town’s contaminated landfill at one edge. The town took the property by eminent domain and intends to pay $1.167 million for it, a figure Bergenn said was far too low given the historical rise of property values since 2000. The parcel is zoned industrial and looks it.

Bergenn told some 45 residents at an RTM hearing that the land was seized without justification. Indeed, he added, the “77 acre parcel is safe for residential use,” the town’s own engineer’s have said so, their testimony would be used at trial this August, and a “real fear” of contamination was hardly a legal reason to seize the property to begin with.

“You can’t take all this because it makes you feel better,” Bergenn told them.

The Planning & Zoning Commission denied the Tabor project on density grounds in 2002. Afterwards, the town’s landfill engineers learned that a plume of contaminated ground water flowing from under the town’s nearby landfill to under the Tabor Drive housing site -a sort of methane migration—could be a Love Canal in the making. Former First Selectman, Anthony “Unk”DaRos, said back then and repeated at the meeting last week that the landfill was far too close to the Tabor site, that the developers were lackadaisical about cleaning it up and that the town could face immense liability if it knowingly permitted housing to go up on a contaminated site. John Opie, who followed DaRos in office, agreed with his thinking.

However, First Selectwomen Cheryl Morris sat silently through this meeting, offering no comment. Apparently she and town counsel, the Marcus Law Firm, endorse the settlement idea, which would involve constructing 275 condos on 45 acres of the 77-acre site. In exchange, the town gets to keep 30 acres, will get new ball fields and receives upwards of $1.1 million in property taxes yearly. A buffer would separate the town dump from the housing.

At the Feb 27 RTM meeting, RTM member Gail Chapman-Carbone asked Morris what had changed since 2003? “…Why are we now trying to cut a deal with the developer, with New England Estates?” she asked, seeking comment from the town’s leader.

David Doyle, the Marcus Law Firm litigator, began to answer. Chapman-Carbone pointedly said: “I am asking the first selectwoman,” to which Doyle replied “but you are getting an answer from me.” The audience gasped. Chapman-Carbone told Doyle it was not appropriate for a town attorney to answer for the town’s top elected official. When Morris finally stood, she turned the question back to Doyle, because “he is an attorney and I am not and he can explain this much more accurately and clearly and that is what we have a town attorney for.”

In another testy moment, this one at last Thursday’s meeting, Kurt Schwanfelder, the Republican Minority Leader, took issue with Bergenn’s observation that contamination found in a well was “a cross contamination of a sampling.” Bergenn conceded that finding a contaminated well gave him pause, but at recent depositions he learned there was no way to convince residents that the reason was a sampling problem. So “for political reasons,” he said, the town put affected residents on town water lines.

“I was on the board, on the RTM in 1991 when we appropriated $3 million because of this contamination,” Schwanfelder said emphasizing each word. “And sir, you are absolutely incorrect. Those wells were contaminated. And it was not one well, we covered four streets, we capped the wells and we gave them city water. It was directly because of the plume. It was not a sampling issue…The arguments we are having right now is you posturing your case for what you feel is the bottom line. What the town has to do is to posture their case for its bottom line.”

Bergenn’s arrival at the Canoe Brook Center was made possible as a result of a two day mediation session on the eve of trial presided over by Superior Court Judge Jonathan Silbert. The judge sought to find a way to bring Bergenn and Doyle to settlement, apparently after hearing evidence that led him to think the town could face substantial monetary risk if it lost at trial.

Doyle took the settlement idea to the Board of Selectmen, which heard him in executive session. It then unanimously sent Tabor to the RTM because only the RTM can sell town land, and the town now owns Tabor.

Some RTM members were simply incredulous that the issue was before them because they thought they had signed off a long time ago. What they came to understand during Bergenn’s provocative presentation was that the case is very much alive. Yet to be decided in court is the price the town wants to pay for the 77 acres and whether the actual seizure of the property was legal in the first place.

What many remember is the court ruling back in December, 2003 when New Haven Superior Court Judge Anthony V. DeMayo denied New England Estate’s motion to block the town from proceeding with the condemnation of the 77 acre parcel. The judge found no merit to the arguments that the town wanted to stop affordable housing. The judge permitted the town to take the Tabor land, but that did mean the lawsuit to recapture it had ended.

From Unk’s point of view, the contamination of the town landfill is still uppermost in his mind and he would say as much when called as a witness at trial. “Think about it. It is a moral issue; you are not going to have a kid get sick. Period,” he said to a round of applause.

Bergenn’s presentation was based on an underlying premise that the town’s prior and current officials and residents had to re-examine their long-held perceptions. He looked for ways to get them less invested in their beliefs, to seek objectivity, and that wasn’t easy. As he described it, the town had a real scientific problem.

From Bergenn’s point of view the legal landscape has changed dramatically in part because of new and more detailed testing, undertaken in 2005 by the town’s own outside engineering firm, Fuss & O’Neill. But even this report is not a full one, Schwanfelder said.

“The Court allowed the Town to take title based on information presented by town officials about potential contamination. Subsequent tests by Fuss & O’Neill—-after Judge DeMayo’s ruling “now verify that this testimony was wrong, that but for two acres, “there is no contamination on this site,” Bergenn asserted. He included in a packet for the committee excerpts of testimony from David Hurley, a vice-president at the company.

Doyle would presumably disagree and it would be up to him to examine in detail Fuss & O’Neill’s earlier statements to the town about the impact of the plume on a housing development near the toxic dump, and to call qualified experts in any number of scientific and environmental fields to testify at trial.

Bergenn said there were two other misunderstandings: the first was that all 77 acres were contaminated. He calls that a misunderstanding but town officials knew back in 2003 that the entire 77 acres were not contaminated. Bergenn said he spent seven days taking depositions of Fuss & O’Neill’s top engineers, “the town’s own experts, and what they said, under oath, is that “the property is suitable for residential use.”

He said “there is nothing I can do about belief, that people believe there is stuff out there. But the studies don’t show anything.” This testimony, Bergenn noted, was crucial to the developer’s case.

He said another misperception was that if someone lived on this site and got sick in the future, he or she would sue the town for millions. To this Bergenn says, “The town had in 2003, and has again through Fuss & O’Neill’s work, proof that residential use of this site would be safe. As a result, the Town has immunity from a lawsuit based on issuing permits for housing.”

At one point RTM Rep. Sandra Reiners, the chairman of the Ways and Means Committee, told Bergenn that “30 years is the norm to monitor a landfill once it is closed, and Branford’s is still open.”

Bergenn pointed out that the water that drains from the landfill goes to one or two bottom acres and then flows away from the site. Under a proposed settlement, the developer would erect a buffer zone separating this area from the condos.This assumes, of course, that there would be no change in the direction of the flow.

He observed that in 1987 this same site received P & Z approval for a 298 condo development, plus a golf course and club house. There was a five year option to build, but the option lapsed. Subsequent efforts were turned down by P &Z, so the developers next turned to the state’s “affordable housing” statute, a tough state law that favors the developer. DaRos said at the meeting that the “application for affordable housing did not happen.”

In January, 2004, when Opie was First Selectman, the town set aside $1.167 million to purchase the property. From Bergenn’s point of view the property is now worth between $ 6 and 7 million, a number many scoffed at, but the lawyer said was based on outside appraisals.

Opie described the land to the audience: “This is a lunar landscape. It needs substantial amounts of fill to make it useful for anything. This is not a prime piece of land. It has always been an industrial site,” he said, explaining how the town arrived at its figure. Indeed, DaRos said Thomas Santa Barbara, Jr. ” bought that property to expand the landfill. And he was denied that by the environmental protection agency. That is the highest use you can possibly put on a piece of land. No piece of land delivers more per square foot than a landfill.”

“Frankly,” said Bergenn “if we win and I believe the judge will submit that we have a very good chance of winning, then the town will have to pay beyond the land.” He said his clients would be entitled to lost profits, compensation for experts and attorneys’ and interest fees. In the end, he said, after displaying a chart, “we walk away with $21.8 million.”

“Your lawyer,” he said, referring to Doyle, “was very vigorous and said you won’t win that amount of money.” It was at this moment that Bergenn apparently had an epiphany. “Well, maybe you’re right. And why should we put the town at risk to spend all that money,” he thought. Next came the idea of a settlement offer, he told the audience. Under it, the town would return the property to the developer, make other accommodations and then “we would try to answer every single thing you guys want.”

Bergenn recognized rightly that the Tabor issue is politically charged. The seizure of the land came under the DaRos and Opie administrations and both men may well run for First Selectman in 2007. Bergenn said that he and Doyle agreed that they should have a “neutral observer.” They selected George Jepsen, past chairman of the state Democratic Party and former State Senate majority leader, who openly admits he is no fan of town attorney Ed Marcus.

Jepsen sat in the back of the room. Apparently he attended the mediation talks with each side. He, too, seemed to think the town had “substantial risks,” especially on the affordable housing issue. Lawyers in general tend to view the legal arguments under affordable housing as cut and dried, but they are not as narrow as they seem as outside legal experts pointed out in the recent Founders Village application.

Schwanfelder asked Jepsen who was paying him for his services. He replied that the developer was.

It will be up to the RTM’s Ways and Means and Administrative Services Committees to vote and present their decision to the full RTM, presumably at the April 11 meeting. The joint committees will also meet tomorrow at 7 p.m. at Canoe Brook to continue the Tabor hearing.
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