DaRos, Opie and Morris Testify at Tabor Land Trial

by Marcia Chambers | September 10, 2007 2:30 PM | | Comments (16)

Waterbury— A parade of Town First Selectmen, past and present, took the stand in the fifth week of the Tabor land trial. But judicial rulings made it extremely difficult for them to tell the jury the full story of the town’s decision to seize the 77-acre property by eminent domain in 2003.

The developer, New England Estates, took four weeks to present its case. The town began its case last Tuesday and presented four days of testimony highlighted by appearances of two former First Selectmen, Anthony Unk DaRos and John Opie, and the current First Selectwoman, Cheryl Morris. The jury may get the case tomorrow.

James W. Bergenn, the developer’s chief attorney, has been extraordinarily nimble and effective in getting his version of events before the jury. And to a large degree, with the help of his caddy, the judge, he has obtained the rulings he needs to severely restrict, even eliminate to a large degree, the town’s case.

His strategy was to do it through an adroit use of legal rules restricting the introduction of evidence from the other side. The town had already been told by the judge that its environmental and financial experts could not testify. As the trial drew to a close, the rope around the town’s neck tightened because Bergenn and Steven Humphrey, who represents the owners, had convinced Superior Court Judge William T.Cremins, Jr. that exclusion was required by the rules of evidence.

On Friday, the town’s trial attorney Kerry Callahan tried getting a 10-page business letter describing the contamination of the parcel into evidence and before the jury. The judge turned him down even after he produced the letter writer, David Hurley, the town’s outside environmental engineer. So Callahan asked the letter’s recipient, Shirley Rasmussen, the town planner, to take the stand. The judge said no again. Too inflammatory, too prejudicial, hearsay, Bergenn argued. “Double hearsay,” echoed Attorney Humphrey. The judge agreed. Bergenn even argued that an e-mail sent at 7:15 p.m. by another town official was too late in the day to be considered relevant as a business record.

When the town of Branford’s Board of Selectmen, Board of Finance and Representative Town Meeting authorized the land be taken back in 2003, they believed—unanimously—that the land held contaminants, the result of sharing a border with the town landfill. Their concerns were for the health and safety of future residents as well as potential liability against the town.

The Board of Selectmen, then led by Opie, held off on formally taking the land until Superior Court Judge Anthony DeMayo in New Haven denied New England Estates a temporary injunction to stop the taking. Judge DeMayo found the town had shown ample evidence of contamination. He ruled on December 15, 2003, just after DaRos left office.

Attorney Callahan sought to get the DeMayo information before the jury. He asked DaRos and Opie and former Town Attorney Penny Bellamy why it took from July 2003 to January 2004 to formally take the land. What happened over those five months?

What had happened was that Judge DeMayo weighed the testimony of a group of Town officials before issuing a written decision that found the town had legitimate environmental concerns concerning the land. His ruling did not preclude the current case, which many residents may not have understood. The DeMayo decision was crucial to town leaders. Opie, the new First Selectman, waited for it before taking the final step to acquire the land.

But the jury never heard this history. Bergenn had maintained that Judge DeMayo’s ruling would only confuse and prejudice the jurors and he asked the judge to keep the DeMayo ruling from the jury. Judge Cremins agreed.

When David Doyle, the town’s attorney from the Marcus Law Firm, heard that the DeMayo ruling would not go before the jury, he left the spectator section and walked into the well of the courtroom. He was livid. At the defense table he asked to be heard: “Your ruling has to be reconsidered,” he told the judge. “Every single decision maker in Branford knew about Judge DeMayo’s decision,” he said, explaining it figured heavily in the town’s decision to formally take the parcel.

“I have already ruled,” the judge declared.

After that a typical courtroom rhythm would occur whenever Attorney Callahan asked about the time delay between the RTM summertime decision and its formal taking on Jan 5, 2004.

When Unk DaRos was asked about the time lapse on Thursday he began to answer. Bergenn objected. The judge asked the jury to leave the courtroom, then told DaRos precisely what words he was to state to the jury when they returned: that there was a court case pending. Unk shook his head in disbelief.

The same thing happened when Opie took the stand on Friday. When the judge told Opie that he was to tell the jury only that “a legal proceeding was pending,” Opie said to the judge “that’s what I say?” He was incredulous.

When the question came to Penny Bellamy, town attorney for six years under DaRos, she too was told by the judge exactly what to say. Then she asked: “We can’t talk about the fact that townspeople testified before Judge DeMayo?” “No,” came the reply. All she would be permitted to say was “there was a court case pending.”

Nor was DaRos allowed to discuss another key aspect of the taking, one he was deeply affected by he told an RTM committee meeting on Tabor in the summer of 2003. This issue centered on the enormous liability the towns of Stonington, Hamden and West Haven had faced after they permitted development on landfills or adjacent land. But Judge Cremins ruled that DaRos’s information about other towns could not be presented to the jury.

The current First Selectman Cheryl Morris also took the stand last week. All three are running in the race for First Selectman this November.

Morris was called to the stand not in her capacity as First Selectwoman, but in her capacity as a member of the Representative Town Meeting. She sat on the RTM’s administrative services committee, which investigated the property, and she voted with a unanimous RTM to take the property by eminent domain.

She told the jury she was concerned about health and safety issues of future residents who might live in a proposed condo complex so near to the landfill. Town engineers said an area near the boundary between the landfill and the Tabor parcel contained contaminants and a methane plume.”I was concerned about future problems. Could something happen three years later?” she asked. No one could predict, she was told.

What the RTM apparently may not have known in detail but which came to light last week in court was that in January and February 2003 Attorney Bellamy and Tim Hollister, who represents NEE and like Bergenn is a partner at Shipman & Goodwin in Hartford, entered into a series of secret negotiations that almost worked.

From the witness stand, Bellamy testified that the town and NEE came extremely close to settling a 2002 Planning and Zoning board rejection of an NEE application. In fact, Bellamy testified the parties came so close that papers were drawn up that would have put more than 250 units of senior housing on the Tabor parcel. Indeed, the town had gone far enough to consider changing the zoning designation from industrial to residential.

All was “on track” toward settlement, she said when “it occurred to me that we needed an environmental evaluation” because the Tabor parcel was next door to the landfill. In early March, Bellamy asked Fuss & O’Neill, the town’s outside engineers, to explain the potential implications of putting up housing in close proximity to the landfill.

Bellamy, formerly of Wiggin & Dana in New Haven, said Attorney Hollister indicated there weren’t any big environmental problems. Meetings were set up to try to resolve the developing issue.

A key meeting took place at Fuss & O’Neill in Manchester, Ct. Alice Bruno, a land use attorney, represented the town at that meeting. She testified briefly. When asked if the developer’s environmental team was taking the town’s concerns seriously, she told the jury in a strong voice “absolutely not.” Of concern to the town, especially DaRos, was that the developer had not done an extensive land analysis, known as a Phase III report.

However, Bergenn elicited from DaRos and Bellamy that the town itself did no testing on the 77 acres before it seized the land, even though Fuss & O’Neill had given the town an estimate to do so. Nor had the town taken into account years of state DEP reports showing the landfill was in environmental compliance with its state landfill permit.

In answer to a Bergenn question Bellamy also testified that as town attorney she did not seek a written legal opinion on the decision to seize the land by eminent domain. As for working out a financial agreement rather than taking the land, DaRos testified the parties were far apart.
The town had allocated what the owners paid for the land—$2.1 million— but not what the developers would have paid them—$4.7 if their option came to pass.

Bergenn maintains that the town decided to seize the property after NEE informed the town that its next housing application would be for affordable housing. He has told the jury—-he often testifies as he asks questions—that the town was so fiercely against affordable housing that it simply took the land.

But if the town were so against affordable housing, how does one explain that the town came so close to working out an agreement for 250 senior housing condos on that land?

Shirley Rasmussen, the town planner, has testified that she was the one who wanted affordable housing, especially for seniors. This was the group most in need in a town that is known as one of the condo capitals in the state. The judge did not allow the letters involving the settlement into evidence but did permit the attorneys to question Bellamy about it.

On direct examination by Attorney Callahan, Bellamy was able to tell the jury that the land fill contained “some fairly nasty stuff.” She said there was contamination along the border of the landfill and the Tabor parcel, “volatile organic compounds in the form of a lecheate plume that could rise into the air or on the property and could influence residents if they lived there.” Bergenn’s loud objections led to a discussion with all the attorneys at the judge’s bench.

From DaRos’s point of view, the fear of illness plus the prospect of endless liability if residents became ill were his main reasons to take the land. “We would have liability forever. Anyone who came down with anything would blame the landfill and not the (Tabor) parcel of land,” he told the jury. The town owns the landfill.

Bergenn asked DaRos many staccato like questions, narrowing his answers to yes or no. But the most effective cross-examination of DaRos came from Humphrey, who represents Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. the owners of the land. They purchased the land in a bank auction for $2.1 million “as an investment,” Santa Barbara said.

Humphrey’s cross-examination of DaRos was short.
Q: You can go on the property day or night, right? A. Yes.
Q: You could have drilled millions of holes, right? A. Yes.
Q: You could have gotten a formal written legal opinion from a top law firm about eminent domain? “Yes, if they did that.”

“But you didn’t test. You didn’t have a written legal opinion. You didn’t ask for one. You just took our property!” Humphrey declared, almost shouting. Unk was silent.
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Comments

Posted by: dman | September 10, 2007 9:14 PM

You have a lot of nerve calling the judge names. It seems indicative of the we're above the law attitude in this town. If you want a synopsis of the case look at the ending of this article. Unk's comments are precious. I new I could go on the property. I took it anyway. It is truly amazing that the towns concern for its citizens health and welfare are traded off for Stealing a piece of property. If our convictions were so strong then why not do the right thing and pay all parties involved. That would have been the right thing to do.

Posted by: REGS | September 10, 2007 10:37 PM

I think I will have to stop reading these articles and go back to some quality reporting without all the editorializing. RTM minority leader Schwanfelder states that Judge Cremins "is on crack" and now Marcia Chambers states he is Atty. Bergenn's "caddie."

How about something on Unk's testimony? Or Atty. Bellamy's editing of the Fuss & O'Neill report?

Eagles are supposed to have great vision, The Eagle, in this case has myopia....I have come to the conclusion these are only op-ed pieces.

Posted by: Moshe Gai | September 10, 2007 10:51 PM

Welcome to the corrupt State of Connecticut Judiciary system. State Judges receive a miserable financial compensation in Connecticut, and it is well known that "when you pay peanuts you get monkeys". Worse off, these monkeys can be bought with a jar of peanut butter. We are being exposed to the state of Connecticut mediocre Judiciary system and to its ugly face.

Thus Spake Moshe Gai (from Bucharest, Romania).

Posted by: dman | September 12, 2007 8:19 AM

You must be talking about the judge who ruled on the injunction.He just fueled the towns false hope that cooler and more intellingent heads would not pick up on the real story. The theft of the property.Incidentally, Moshe, if you don't like it here go back to Romania and see what their justice system is like.See if you can even "spake" your mind there. LOL

Posted by: KURT SCHWANFELDER | September 12, 2007 9:06 PM

THIS MESSAGE IS TO DMAN AND REGS--BOTH OF YOUR COMMENTS SHOW THAT BOTH OF YOU APPARENTLY WORK FOR THE DEVELOPERS -- SANTABARBARA AND/OR PERROTTI OR THEIR LAWYERS---MY NAME IS KURT SCHWANFELDER AND I HAVE NEVER HIDDEN BEHIND AN EMAIL NAME---I DONT MIND ANYONE STATING THEIR POSITIONS AND FEELINGS BUT BE MAN ENOUGH TO SIGN YOUR NAME---WHO ARE YOU AND ARE YOU BRANFORD RESIDENTS?

Posted by: dman | September 13, 2007 1:09 PM

Kurt,

I hear you but I don't agree with you. Identities are unimportant. What is important are facts. I suspect you would agree with the premise it takes a "real man" to call someone names. Like stating someone is on crack for example. You certainly helped your TOWN by not being able to testify because of your inability to control your thoughts and emotions. I hope this is a signal for people thinking about voting for you and Opie. I would imagine your response to this is to want to find me and beat me up.Good Luck

Posted by: REGS | September 13, 2007 3:00 PM

Mr. Schwanfelder, Thank you for thinking of me. However, I am not an admirer of your public ranting and would not want to be a target of your venomous epithets. You may also be considered sexist on top of everything. What makes you assume I need to "be a man?"
If only I were part of the developers, I would now have a piece of 12.8 Million dollars to look forward to....

Posted by: scjerry | September 13, 2007 8:14 PM

I'm considered among my Republican friends to be a tree-hugging, fish-hugging frigg'n liberal, but we still get along. I don't mind hiding behind a pseudonym, because, I agree, ideas count, not the messenger, as long as you know my biases and where I'm coming from, you can take them or leave them, as you wish.

But I'm also a scientist, who has a reverence for logic and conclusions based on empirical data, irrespective of my idealology. The judge seems to have precluded the introduction of this data. Where are the plumes, when were they exposed, and by what laboratories and with what credentials?

Do these plumes rise to the surface to threaten users of the property adjacent to the landfill?

What is the risk of inhalation of methane gas, hydrogen sulfide, or other VOCs by users of the property, or through the basements or garages of the apartments or condos, i.e., what is the chemical composition of the plumes? I have a distrust of the DEP, so the town should roll their own with a reputable environmental lab.

That said, I have a real problem, when past town administrations and their lawyers who cannot tell me that they ordered a systematic sampling of the 77 acres adjoining a landfill, and they cannot tell me that they consulted with legal eminent domain experts before they invoked eminent domain acquisition of the Tabor property.

None of us, not even the most astute political leaders of the land, are islands unto themselves and thus the repositories of all wisdom.

That said, I have another problem on the other side of the ledger. Affordable housing for indigent families with several children is a lot different that affordable housing for seniors. Even an idiot scientist can see that. The return on educational tax investment results in a substantial shortfall, a fact that developers will simply not own up to. The Tabor development would result in building a new school at taxpayer expense.

Sorry, Mr. Developer, but those appear to be the facts.

This clearly will go to appeal, where the judge will order a return to sanity and common sense, i.e., a decision based on good data.

Posted by: REGS | September 13, 2007 11:56 PM

My background is in the science and art of Urban Planning and Community Development.....and I have come to know that planning needs to be proactive, not reactive. This is where the Town made its errors. The DEP and ACOE are very professional agencies, so I take offense at the aspersions cast their way. But from what I have gleaned, the Town NEVER did exercise its rights to test the property. The tests they had conducted on the landfill yielded no actionable results. So who is to blame for this?

The limited information reported on any plume is that it may touch a corner of the Tabor site. BUT, it would run under the adjoining existing homes in the Ark Road neighborhood out to the LI Sound. I never heard any concern expressed for these existing residents, only the future residents who would have been uphill of "the plume."

The fact is, many former landfill sites are reused for recreation facilities. I think that was what was proposed here, or at least nearby.

The CT Affordable Housing rules speak of families with incomes between $30-50,000 per year. I would hardly call them indigent. Probably a lot of Town Employees would qualify for such housing. Furthermore, most multi-family developments like Avalon Bay which I assume this was modeled after, have relatively few children in them.

In the end, the ones who will get the most out of this are going to be lawyers with a stream of endless appeals.....

Posted by: E. Cleveland [TypeKey Profile Page] | September 14, 2007 3:25 PM

People who are too afraid to speak their minds under their real identities have no right to be taken seriously, and I think they should be ignored. Because it is very clear that they have a secret agenda to put forth...otherwise why be secretive? That in and of itself provokes mistrust.

I disagree with SCJerry. Yes, ideas count, but only when they are put forth by individuals who are willing to stand by their ideas with an identity. Anyone can claim to be a scientist when there is no way to check, and frankly I would never take it on faith that they are indeed scientists if they choose to hide their identities. Good science is peer-reviewed, and no one can review a "peer" if they don't know that "peer's" name.

I think only authors of fiction can write under a pseudonym and get away with it. So it becomes the reader's right to decide if what is written on this website under a pseudonym is just fiction.

And I agree with Kurt Schwanfelder. Dman and Regs are somehow connected to the developers suing the town. They have never before posted on the Branford Eagle until the Tabor articles appeared. Coincidence? Doubtful.

Posted by: eyeright | September 14, 2007 7:46 PM

After reading about the Unk and Opie show in this trial, Cheryl Morris's performance as first selectman is starting to look a whole lot better.

Sometimes the best man for a job is a woman!

Posted by: The Truth | September 15, 2007 12:28 AM

Branford's "leaders" are a disgrace...they took the property under false pretenses and have lost the Town $19 million and still think they were right. It seems to me that if the people in charge knew there were no environmental reasons for thei taking they should be facing criminal charges...i.e - fraud conspiracy. People in positions of power should be held to a higher standard...see Mr Nifong in NC. Believe it or not these clowns are running to keep their seats...

Posted by: scjerry | September 17, 2007 11:49 AM

As I said, as long as my biases are exposed, take my comments or leave them, anonomously or not, consider or ignore my opinions as you will, and as I do others.

As to the offense taken by REGS to my reference to not trusting the DEP, just follow the Coraunt's expose("Toxic Waters") on the DEP's handling of industrial pollution in Conntecticut's waters. The DEP is resource constrained, receives only a fraction of its funding from the General Fund and has undergone drastic personnel cuts in the last decade. They do foul up, and I hope Dirctor Gina McCarthy luck in getting more funding.

But the responsibility is the town's to protect its collective interests by good management practice. Prudent practice means testing the 77-acres for environmental contamination, something any of the last three administrations could have done.

That said, Judge Cremins was way off track in not allowing the Hurley Fuss & Oneill report.

But the cake is taken by Attorney Doyle's (Marcus Law Firm) contridiction of his own prior court testimony.

Here it is for those who forget easily:

"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."

So speaking of prudent town managment (or lack of), Morris by changing legal horses in midstream, is by far the most culpable in this Tabor fiasco.


Posted by: dman | September 18, 2007 10:44 AM

Are you referring to the 10 years + F&O reports or the landfill closing report. All which showed no contamination. Or are you referring to the letter Hurley prepared with Penny Bellamy. Heres a good one: Why didn't the Town show definitive proof there was contamination?
Answer: Because they have NONE. If they did have it prior to the taking it would have been presented. They never tested the property. This was sworn to by Hurley and Unk. No evidence of pollution. Just take the property. Now its time to Pay!

Posted by: scjerry | September 19, 2007 9:02 AM

The link to Hurley's 5-page report is here for everyone to read. http://www.newhavenindependent.org/archives/upload/2007/09/scanHurleyLetter0001.pdf

Now, DMAN, you say there is no contamination, well, let an honest open jury trial be convened that allows testimony by all environmental experts and cross-examination by both litigants and defense.

As to the influence of Bellamy on Hurely's scientific conclusions, an accusation you have leveled in other comments, even suggesting unethical culpability, it is not uncommon for attorneys to change style, format and, yes, even grammar and spelling.

Do you think Hurley would have allowed anything that would damage his professional credibility in the report, knowing he could be called as a witness in anticipated litigation, and be asked under oath to confirm his conclusions?

Well, lo and behold, he wasn't called in the second trial before a jury, because a flawed trial process precluded him and any other environmental expert from testifying, and, as a result detractors are having a field day by spewing forth extreme hyperbole, claiming there never was contamination.

What hog wash! How can there not be leaching out from a several-decades old landfill. The landfill is a 100-foot high mound, has everything in it including stuff that we now take to hazardous waste in New Haven. And, even, perhaps, drums of stuff from industrial dumpers in a very loosely monitored dump site.

The landfill is not contained within sealed boundaries, the leachate diffuses into the substrate below, following fissures in the rocks and flows outward under the 77-acre site.

Are you a geologist with knowledge of the substrate under the landfill? Are you an expert in landfill technology and environmental issues associated with landfills?

You have expressed an unfounded opinion that the parcel is free of contaminants and will be for the foreseeable future. What happens when cans of toxic organic stuff finally rust through years from now? What happens years from now when retesting is done and we find we made a mistake and inhabitants are suffering from health problems, as has happened in other similar situations in Connecticut?

We agree on only one thing, DMAN: the property should have been more thoroughly tested to determine the geological makeup of the substrate, the location of fissure lines and groundwater flow paths, particularly as an underpinning to good risk management, and to fulfill the town's moral obligation not to subject humans to future health risks.

But you know what, the Morris/Marcus administration had an opportunity to test it, too.

So why didn't they, DMAN? Is it because M&M wanted this to be a divisive issue just before an election?

Do they have the best health interests of potential future inhabitants in mind, or the best interests of the developers, who were the largest contributors to their campaign in mind?

Which is it, DMAN? Which is it?

Posted by: dman | September 19, 2007 11:55 PM

I am not an environmental expert. David Hurley from F&O is. He testified at the trail and said under oath:
the property is clean and suitable for residential use. He never even looked at the site plan of development and had no idea where the buildings were going. He also said he did work for the current owners and suggested they contact F&O site planners for ideas on development.

His letter was vague and said a lot of generalities. He indicated all readings were below the established RSRS. There was nothing in the letter that was useful to a decision maker contemplating condemnation. No Data just possibilities. Not enough to take property under the 5th amendment.
Bellamy cites editing in her billing statements. If Hurley went to the F&O counsel maybe I would buy your argument but the fact she helped write a letter containing no supportive data which was going to be shown to a decision making body for a very serious undertaking in my opinion is collusion and bad faith.

Two other points. The town made reference in one of its reports that it was considering using the "landfill itself for passive recreation"
Secondly, How do you claim there is pollution, when one of the reasons for condemnation is to build ball fields. You claim its dirty and put your kids on it! This just does not make sense. Again Hurley, an expert, on the stand under oath said the use classification for "residental" and "playing fields" is the same.

Conclusion: This was caused by those who didn't take the time to do the research and get competent legal advice. An attorney in a big law firm knows better then this. Especially with the resources of Wiggins and Dana. Get an opinion from an expert on condemnation if you never did it before. Look what this has caused!

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