New Haven Independent

The first trial, overseen by Judge William T. Cremins,Jr. without a jury, centered on the value of the 77 acre parcel of land. Judge Cremins ordered the town to pay $4.6 million to the owners of the Tabor tract, plus 4 percent interest from 2004 to the time the funds are paid.

The judge ruled that residential housing is the highest and best use for the property and found there was “no credible evidence of environmental contamination” on the property, an opinion the attorneys for the developer have repeatedly advanced. The judge’s opinion was silent on the specific issue of “affordable housing,” a concept the developer embraces but the town opposes. In court, he said, he would likely arrive at a decision without it.

The judge, who oversees a special “complex litigation” court in Waterbury, rejected the town’s position that the land be kept vacant because of possible contamination from an adjacent town landfill.

There are strong indications that each side may appeal the judge’s ruling but they have twenty days to decide. David Reif, the chief outside counsel for the town on the land valuation, has not yet decided what his course of action will be. Jim Bergenn, who represents the developers, indicated he would appeal certain aspects of the decision. All the lawyers will be back in court tomorrow but instead of Reif, Kerry R. Callahan and David Monz will defend the town on the “wrongful taking” part of the case.

Before the ink was dry on the judge’s decision, Cheryl Morris, the town’s First Selectwoman, who has previously been castigated by both the RTM and former First Selectmen Unk DaRos and John Opie for issuing a press release detrimental to the town’s best interests, went down the press release trail once again. Click here to read it.

Despite the fact that a jury trial was about to begin, and appeals were being weighed by both sides, Mrs. Morris took the opportunity to hang the town out to dry, discarding the pretense of even a minimal public relations effort.

She slammed her predecessors, saying in her view they assessed the property below market value, they hid from the public what “the real impact of a condemnation action may be,” and they hid the facts from the taxpayers. In a press release, apparently unvetted by Reif, she held DaRos primarily responsible, saying it was “the ineptness of basically the DaRos Administration and their then town counsel who mishandled this matter from its beginning.” DaRos’s town counsel at the time was Penny Bellamy, formerly of Wiggin & Dana.

In an interview with the Eagle, DaRos said he was appalled by Mrs. Morris’s conduct and speculated it was her way of lashing out at him during an election year.

“They are willing to have the town of Branford, the people in Branford, have this horrendous liability hanging over their heads forever. I wouldn’t allow it. And I stand by that decision and if you want to blame me for the whole thing, please do. It was the right decision then, and is the right decision now.”

As for the press release, which reads like a gift to the developers and owners, DaRos said: “She did this before in her first press release.. She is giving the developers more ammunition for a better case on appeal. This woman is absolutely irresponsible. And I think the question begging for an answer is—-is she working for the town of Branford? I think that question has to be asked. It is past being nice about this. Because they are certainly going to line somebody’s pocket on this deal. …It just stinks, it just stinks.”

John Opie, the Republican Third Selectman, who is also running for his former position as First Selectman, told the Eagle: ” I am only surprised that it didn’t have the little disclaimer at the bottom of the page: Paid for by the Morris/Sullivan re-election campaign. It seems to be a politically inspired bit of creative writing.”

Morris charged that the town issued bonds in excess of the condemnation price of $1.167 million (about $2.5 million), because both DaRos and Opie knew the price for the parcel would be higher as a result of the court action. But both DaRos and Opie in separate interviews said Morris had no idea what she was talking about and probably had never read the bond language.

“The bond language and the resolution passed by the Board of Finance, the RTM and the Board of Selectmen, all unanimously, included the purchase as well as additional funds for engineering and legal fees,” Opie said and DaRos agreed.

Judge Cremins, who will also preside over the second trial, issued his 26-page decision on the valuation on August 3rd after earlier in the week telling the attorneys he had arrived at the $4.6 million figure. He ruled after a trial he held in late June and early July. The developers have produced several plans over the years, the latest of which went down to defeat in a unanimous vote by the Representative Town Meeting. It would have had 275 condos on 45 acres of land.

The judge rejected a $6 million plus appraisal put forth by the developers, New England Estates and the land owners, Thomas Santa Barbara, Jr. and Frank Perrotti,Jr. The judge also rejected the $1.167 million the town set aside for the land, zoned industrial when it was formally seized by eminent domain on Jan. 5,2004.

The judge accepted the developer and the owner’s contentions that they would have succeeded in getting approvals and permits for the development, even though Branford Commissions and boards had turned them down.

Judge Cremins, who toured the property with attorneys from both sides, had a clear vision of how the property should look:

“The subject property is a desirable property for residential development. It is located in an ideal setting for residential use,” he noted, adding that it was only ¾ of a mile from Long Island Sound. “The entire tract is favored by immediately accessible utilities, including a sanitary sewer line and a municipal water line.”

In arriving at his $4.6 million dollar value, the judge cited comparable sales offered by both the owners and developer’s appraisers, both of whom set the value in the $6 million plus range based on comparable properties elsewhere. But the judge set $4.6 million, about the price the developer would have paid had he been able to exercise his option to purchase.

In eminent domain cases, Connecticut courts have long held that an owner shall be put in as good condition by just compensation as he would have been had the property not been taken. Key to that “just compensation” is the market value of the condemned property when put to its highest and best use at the time of the taking.

Both DaRos and Opie chastised Morris for keeping the case with the town’s attorney, the Marcus Law Firm, until last May. By the time Reif got the case back that month, depositions had long been over and his effort to get an expert before Judge Cremins to address the contamination issue failed because it came too late, the judge noted in his decision.

While the judge made his decision regarding the contamination issue without benefit of a live expert, he had read numerous court documents outlining both the town’s position and the developer’s position on the subject.

It is not known if Doyle had deposed an outside environmental expert when he had the opportunity to do so back in November. If he had, the witness was not called. But it does appear that from the time the Marcus Law Firm received the case and had it moved to Waterbury in December, 2005, the aim of the litigation shifted from trial to settlement.

Tim Hollister, who represents the developer, noted Doyle’s statements in open court in October, 2006, shortly before depositions got underway. Hollister said Doyle “made a binding judicial admission that the Town did not intend to offer evidence of a reduction or offset due to an environmental condition.”

According to the court transcript, Doyle said: “We say we took the property to prevent potential future environmental problems; and that’s what we said.”

Hollister pinned it down. “The town is not going to claim that they took the land in January, 2004 because there was physical contamination at that time of our property. If that’s—that’s the understanding, then I agree with Mr. Doyle.”

The Court: “I don’t want to put words in anyone’s mouth.”

Mr. Doyle: “No, that’s my understanding of my own defense.”

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